For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).
Julie C. Suk
Jack Balkin’s Cycles of Constitutional Time is the bearer of bad news: we are living through a period of severe constitutional rot, characterized by peak polarization and conservative dominance. The federal judiciary is deepening the rot, instead of providing an antidote. Balkin’s account of constitutional history, particularly the dynamics between presidential regimes and the federal judiciary, leads him to cast polarization and constitutional rot as stages of a cycle that, in the past, produced renewal and democratic innovation. Balkin thus concludes that a path out of this constitutional rot, by way of political mobilization and reform movements, is on the horizon. But the story of constitutional rot in this incisive and engaging book leaves me less confident than the author that the “malaise is only temporary” (3) and soon to be surmounted. In what follows, I will explain why, and further suggest that the Constitution itself contributed to what Balkin calls constitutional rot over time, making it doubtful as to whether a new constitutional order can emerge without a more thorough redesign of our constitutional institutions.
Balkin argues that constitutional rot, while unpleasant, is
nothing new. Polarization moves in
cycles, and this nation experienced a cycle when a period of high polarization
began at the end of the 19th century, with a sharp rise in
inequality during the Gilded Age. Inequality “became so pronounced that public
opposition eventually overwhelmed the political blockages to redistribution and
reform” (36). This cycle of polarization gave way to the Progressive Era, which
set off a process of depolarization, culminating in the constitutional renewal achieved
by the New Deal. Balkin insists that it’s a cycle, rather than a “constitutional
crisis” – in which the continued existence of the Constitution is itself under
serious threat. Balkin defines constitutional rot as “the decay of those
features of a constitutional system that maintain it both as a democracy and as
a republic” (44). The joint pursuit of the public good disappears, and the
country functions in political darkness as an oligarchy.
“I promise you, this eclipse is purely temporary,” Balkin writes
(65). But the fact that our constitutional democracy managed to survive its
past life-threatening illnesses does not render it immortal, nor does it render
renewal feasible. Renewal through depolarization and judicial reform may have
fallen further out of reach in the intervening time. Balkin identifies “four horsemen” that have caused
constitutional rot in the United States: political polarization, economic
inequality, loss of trust, and policy disasters. Balkin suggests that the Founding
Fathers were aware of these future threats and wrote a Constitution to “limit
the cycle of constitutional rot” (47).
But the Founders also wrote provisions into the Constitution
that spawned, rather than limited, constitutional rot. Pro-slavery
forces entrenched their interests in the Constitution, as evidenced by
Article V’s provision that made the slave trade unamendable until 1808 as well
as the fugitive slave clause. Even though these provisions, and the
three-fifths clause, were superseded by the Thirteenth and Fourteenth Amendments,
the pro-slavery forces also entrenched their interests in the institutional
design of our political institutions, which continued to give disproportionate
political power to the states that depended on slave labor, even after the
Thirteenth Amendment abolished slavery. The Constitution guaranteed that every
state would have two Senators regardless of population, and immunized the
states’ equal representation in the Senate from the ordinary process of
amendment in Article V, requiring each state to consent to changing its equal
representation in the Senate. The Electoral College was also enshrined to
protect states’ control over presidential selection, which undermined
democracy by entrenching slaveholding states’ disproportionate influence.
Balkin obliquely criticizes the electoral college several
times throughout the book by pointing out that Trump’s electoral college
victory diverged from the popular democratic vote by the people. While he
clearly regards Trump’s election and administration as a manifestation of
constitutional rot, and anticipates the reasonable possibility that the
electoral college will deliver yet another Trump victory this November, Balkin
does not characterize the electoral college or other entrenched undemocratic
constitutional provisions as enablers of constitutional rot. Furthermore,
Balkin identifies the Senate’s “constitutional hardball” to prevent Obama’s
appointment of Merrick Garland to the Supreme Court upon Justice Scalia’s death
as another major indication of constitutional rot. But he does not discuss the
undemocratic composition of the Senate required by the Constitution as an
underlying enabler of Mitch McConnell’s success in shaping the federal
judiciary that is failing to protect democracy.
Article V of the Constitution, also unchanged by the Civil
War amendments, makes formal constitutional change rare and unlikely.
Amendments to the Constitution require two-thirds of both houses of Congress
and ratification by three-fourths of the state legislatures, or else a petition
to Congress by two-thirds of state legislatures for a constitutional
convention, which can propose amendments that then need to be ratified by
three-fourths of the state legislatures. The consensus required to amend the
constitution essentially gives formerly slaveholding states veto power over
constitutional amendments.
It is perhaps because the U.S. Constitution is impossible to
amend without making common cause with some racists and white supremacists (as
the recent 19th Amendment centennial has brought to light) that
liberal constitutional reform projects tend to steer clear of proposing
constitutional amendments. Balkin’s
proposed reforms in Chapter 11 are no exception. To overcome the constitutional
rot, Balkin argues that political action, rather than judicial decision, will
lead the way, and can be achieved without a constitutional amendment. His
reforms include (1) instituting regular and predictable Supreme Court
appointments, (2) term limits for Supreme Court Justices; (3) reducing the
Supreme Court’s control over its own docket; and (4) sunrise provisions. These are all reforms that would reduce the
sitting judiciary’s contribution to constitutional rot, but the focus on the
judiciary may be misplaced if the President and Congress (including a Senate
that disproportionately represents the American people) are equally responsible
for constitutional rot. Furthermore, to the extent that Balkin presents his
theory of reform as a prediction of what’s next in the cycle, rather than as a
normative prescription, one wonders whether Congress – even assuming liberals
win majorities in both Houses—will be moved to legislate such significant
reforms of the judiciary. Whereas Republicans
and the conservative movement have made judicial appointments a central issue
in legislative and presidential elections, Democrats and liberals have paid
little attention to the composition of the judiciary in legislative and
presidential campaigns in 2020.
Balkin’s optimism about a political mobilization completing a
cycle of depolarization may be unwarranted. He does not identify a movement
that can carry out the “painful process” of emerging from the “stubborn
condition” (174) of constitutional rot. The “most likely candidate” is a
“natural evolution of the coalition” “of minorities, millennials,
college-educated professionals, suburbanites, and women.” While the book’s
thesis sounds in deterministic prediction; it acknowledges that emerging from
constitutional rot will require hard political work that is contingent and
subject to failure.
The coalition on which Balkin hangs his promise of
constitutional renewal will face barriers to exercising the political power
necessary to reverse the rot because, with the exception of women, they tend to
be concentrated geographically in places that are disempowered by the flawed constitutional
design of the Senate, the electoral college, and Article V. In addition, the prior New Deal coalition of
working-class people with socially liberal college graduates initially
left out minorities and women. As it
evolved to encompass the civil rights movement and women’s liberation in the
1960s and 1970s, the Reagan regime successfully capitalized on the cultural
backlash to these politics of identity and prevailed in 1980.
It may well be that salvaging democracy in the twenty-first century will require a more ambitious project of constitutional renewal, beyond Balkin’s proposed judicial reforms, if this multifaceted coalition is actually to be empowered. Other countries are undertaking new processes of constitution-making under conditions more inclusive and democratic than our existing Constitution envisions. In Chile, for instance, a plebiscite in October will determine whether a new constitution will be drafted by a constituent assembly elected to reflect gender parity. In Iceland, a crowdsourced constitution produced in 2018 was not ratified by Parliament, but it led the government to conduct deliberative polls to plan a constitutional revision process that is currently in progress. If a rotten constitution has enabled the constitutional rot over time, rethinking the design of our representative lawmaking institutions and the process by which the Constitution is amended may be the only hope.
Julie C. Suk is Professor of Sociology & Political Science, The Graduate Center – CUNY; Visiting Professor of Law, Yale Law School, and the Author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment (2020). You can reach her by e-mail at jsuk@gc.cuny.edu, or julie.suk@yale.edu, and on Twitter at @JulieCSuk