The Cycles (and Eddies) of Political Time

For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).  

Jedediah Britton-Purdy

David Singh Grewal

Thanks to Jack Balkin for letting us comment on his Cycles of Constitutional Time.

We wish to offer a few general remarks on some themes at the heart of the project: the idea of cycles in politics, and of different modalities (“time”), whether progression (in a “linear” fashion or otherwise) and repetition (albeit “rhyming” not repeating, to follow Jack following Mark Twain – and, more recently, Seamus Heaney and Joe Biden.)

We dare not follow Jack or Steve Skowronek into the details of long-lost Congressional majorities and the rhetorical postures of past presidents. But we wonder whether these episodes of rivalry and polarization (and depolarization) present something more like “eddies” in constitutional time, and would not have been recognizable as “cycles” to the ancient Greeks or ancient Chinese whom Jack evokes at the start, and whose (to modern eyes) basically pessimistic idea of cyclical time encompassed a broader and more troubling scope, from political flourishing to ruin. Our purpose in this commentary is to ask whether there might be power still in the older conception of the cycles of political time, and, if so, how they would bear on the temporal character and the prospects of a modern constitutional republic that is also a capitalist democracy.

1.      On political cycles:

Here, with apologies to Plato and Polybius, is a short and sweet version of the ancient Greek conception of the regime cycle. The despot stands alone, victor over others but not victor over himself, and thus still a participant in the human predicament. External exigencies – which induce reliance on his bravest subjects – or internal evolution – the desire to bring others in, for aloneness becomes loneliness in any political animal – leads to a moderation of the despotism into something like monarchy, perhaps over generations. But monarchies are seldom so strong that they can stand alone: the oikodespotes of the ruling family cannot alone command a kingdom. Rather, for reasons of military alliance and the favored means of diplomacy among families, intermarriage, monarchies always produce aristocracies, which initially return the favor: a handful of optimate families are close to and participate in the majesty of the monarchy – if not the monarch – conceived as an institution. But crises of the monarchy lead the aristocracy to play a greater role in its power. Weak monarchs – or worse, haughty ones (Tarquinus Superbus) – either generate decay of the monarchy or inspire its overthrow. Those ready to pick up the reins of the kingdom are the aristocrats who were always only a step away from governing. They set up a governing council, the central institution of an aristocratic republic. But by the very act, they work their own demise as a unique ruling order. The status distinction between aristocrat and commoner is now a visible, public boundary that ambitious men (typically) can aim to cross to take a hand in public power and glory. Crowds of novus homini and, worse, pretenders are the inevitable result, especially where an aristocratic republic is unburdened by external war, and commerce – rather than valour – can become the means of advance. The aristocratic republic becomes frankly oligarchic, with status distinctions playing few (or none) of the disciplining roles of previous generations, and money and connections counting for everything. But money is not blood: it (and, sometimes, land) can be redistributed (or so it seems) and the aspiring masses want their share. Demagogues break into the oligarchy by rallying popular forces, promising redistribution or simply using personal wealth to buy support in the streets, or among mercenary soldiers. Leveling movements, civil strife, and fights over the bounds of the existing “constitution” (not typically a written “basic law” like ours but a regime of authoritative practices and, perhaps, foundational public legislation) lead to ad hoc emergency measures by new politicians. These self-proclaimed democrats clamor to speak for the rising people, over and above the established elites and tired institutions. From classical political theory – and from Roman history, taken as a model for Star Wars and much else – we know where this cycle ends: in a societal breakdown which no existing constitutional machinery can arrest. Civil violence, or at least fear of it, becomes the means of collective advance: riots as reform; “movements” without and against institutions. But the many cannot exercise the power they demand it: they (we) are too diffuse, distracted, diverse—a multitude, not a body politic, since they have thrown off even the institutional shackles of formal assembly. So one rises, to do what they cannot; one rises, to answer history’s many refusals by doing what had seemed impossible; one rises, to the relief of both the few and the many…

 The despot stands alone, victor over others but not victor over himself….

 This is the cycle of political time. Please adapt as you will the standard tripartite division of regimes known since Herodotus, and whatever crenellations of Roman history most appeal to you. It was, for instance, a simple application of the last stage of this model that led Edmund Burke to his famous prophecy of Napoleon’s rise from the ashes of the French revolution. Readers will recall Burke’s forecast that, in an “ignoble oligarchy” of shifting parliamentary majorities dominated by ambitious new men, “In the weakness of one kind of authority [parliamentary], and in the fluctuation of all, the officers of an army will remain for some time mutinous and full of faction, until some popular general, who understands the art of conciliating the soldiery, and who possesses the true spirit of command, shall draw the eyes of all men upon himself … the master of your Assembly, the master of your republic.” A lot of silly praise has been heaped on this sometimes unhinged polemic for ostensibly forecasting the horrors of twenty-century totalitarianism, but this haunting passage simply assumes that the cycle of political time continues into modernity, and sets out, with a practicing politician’s feel for power, what ends a disorderly, oligarchic soi-disant republic: the Caesar of a revolutionary mob. (There is even, one might note, something oddly like a miniaturized Roman history in the tumultuous decade and a half following 1789: the overthrow of the king, the establishment of an elite republic (les Girondins), its liquidation by the demotic mob, chaos and the rise of the dictator, later crowned emperor, whose lasting legacy – in both the Roman and the French cases – was the conversion of a wounded republic into an empire of law.)

 If some version of the cycle theory retains power for us Americans, the governmental moves and shifting public opinions of Jack’s book must intersect with these cycles. We can guess how his eddies might relate to the cycles. But he does not tell us how. And this makes us wonder: what’s behind his focus on the eddies? Jack’s seems to us, in this respect, a profoundly optimistic orientation. To focus on the eddies is to assume we have gotten out of the traditional cycle, or perhaps simply that it was never valid—in any case, that it has no hold on us. But is that right? Looking around, we observe a political oligarchy (Congress) seamed with money and celebrity, hardly able to govern, increasingly irrelevant even as it remains at the heart of an old “republican” constitution; passionate demands (our commentators call them “populism”) for more than the state can summon the will or means to provide, from real economic security to dignity and recognition in a fragmented society (our commentators call it “polarization”), which come in waves that break into disaffection and deepened cynicism, even occasional violence; a strongman, indifferent or hostile to the old constitution, whose claim to rule may be to restore collective greatness, or just to lay waste the canting oligarchs. We announce our modernity by speaking in -isms  and -ations and borrow from social scientists, but have we really earned our exit visa from the cyclical view of political time?

  (2)

 And what is “linear” time? It is political progression that expands and evolves but does not repeat (or rhyme). Jack names this early on as the common commitment of modern constitutionalism, whether “originalist” or “living” (and, might one add, “living originalist”?)

 But, in fact, modern constitutionalism is not distinguished by a theory of time, but by a mode of collective will-formation. It is an attempt to escape from the cycles theory of ancient constitutionalism precisely by providing instead a praxis of will, by which a people (always an artificial, politically grounded entity) can make the terms of its common life by legislating its own basic law.

 The modern constitution is an effort to institutionalize democratic will-formation. It thus provides a theory of the legitimacy of the agent speaking law, establishing “the People” as an actually possible sovereign, rather than the political deus absconditus to which any opportunist may appeal. Centered on the problem of sovereign will, modern constitutionalism only backs into the problem of time as a secondary problem for the jurists, when the popular sovereign does not speak continuously (as the ancient democratic assembly did). The problem of time becomes acute when the constitution makes amendment, i.e., further sovereign action, all but impossible, as Article V does under modern conditions. In such cases, it is unclear when, if ever, the sovereign people will affirm, repudiate, or revise a basic law whose most important text stands from long ago (in the US, dating back 150-230 years). We have argued elsewhere that the major divisions of U.S. constitutional law and theory are symptoms of this problem: a constitution that depends on the articulation of popular will for its legitimacy and, indeed, for its legibility as basic law, but which freezes the development of that law, transforming a charter for the self-rule of the living into one for rule by ancestors. Originalism and living constitutionalism represent fragments of modern constitutionalism, which Article V has broken apart into, respectively, the popular authorship of the past, explicit but increasingly remote, and the inarticulate but current attitudes of the living, converted into “constitutional law” by judicial hermeneutics. A central concern with time is thus a malady of certain modern constitutional cultures, not a defining characteristic of modern constitutionalism. 

            (3)

             There is, however, a modern conception of temporality that is linear, and which is the proper counter to the ancient theory of regime cyclicity. That is the theory of history articulated in classical political economy, which culminated in the nineteenth-century theory of capitalism. (After the marginalist revolution focused attention on the moment of commercial transaction, twentieth-century political economy lost express interest in historicizing the emergence of commercial society; nevertheless, a version of this progressivist history informs modern economics and economic history, as seen in the focus on “growth” as a central problematic across time.) The political theory of political economy takes the market as the natural, enduring form of human society, on top of which many different regimes can subsist, so long as they respect its fundamental dictates; it thus reimagines the problem of politics as that of the compatibility of different forms of rule with the dynamics of commercial society. On this new account, the advent of commercial society fundamentally shifted the terms of human history through the construction of immense institutional and cultural path dependence (with network effects that would pull in the whole world). The first commercial society would, in a sense, bring others into the terms of its social ordering; and the totality of commercial societies would inaugurate a new political order in which governmental differences would be reduced in keeping with the dictates of the exchange economy. Theories differ as to how this will happen, but the presupposition is of some functionalist selection, possibly military competition.

             On one prominent and much-elaborated theory of this kind, Karl Marx’s theory of capitalism, the motor of history is class conflict, which is realized differently in different settings, in a progressively evolving history that is now reaching its apogee. Underlying it all are two basic dynamics of commercial society, which together contribute to what Jack calls “linearity” in its theory of time: first, automation (the constantly increasing ratio of constant to variable capital, in Marx’s technical terms) and accumulation (given by the only enduring cycle in the theory, the cycle M – C – M’). But a simpler version is just the linear increase in population size and in human wants (the two going together) that drives the stage-theoretic progression in Adam Smith’s famous account of history (in both the Lectures on Jurisprudence and Wealth of Nations). This is not history as cycles; this is history as economy, meaning the release from cyclicity through the mobilization of ever-greater quantities of that stuff that creates history: human labor. More labor; more commerce; more commerce, more labor. The bourgeoisie don’t go in for the decadence of aristocratic cycling (with all the drama of generations rising and falling). Interest doesn’t cycle; it compounds.

             If the economy at least disciplines which political institutions can arise (or, more boldly, generates them in a Marxian base/superstructure relationship), then the flotsam and jetsam of Jack’s eddies are not contribution to cycles (in the ancient sense) but statistical noise, akin to the business cycle, that should not obscure the basic trajectory of (global) capitalism. On this view (which is not entirely ours), it is in an analysis of capitalism and its possible futures that Jack should search out the meaning of the American republic, past, present, and future.

            On one take, this approach would suggest that eighteenth-century constitutions are predictably old hat under twenty-first century capitalism. The imperatives of capital accumulation will sweep away whatever is distinctly local (as 20^th century commerce clause jurisprudence did, explicitly in service of the functional requirements of a national economy) and, increasingly, national, handing off vital functions to global regimes of trade (e.g., the World Trade Organization) and the maintenance of capital stability (e.g., the Federal Reserve, which in the latest crisis has expanded its role as emergency support for creditor classes in both hemispheres). If we want to understand the basic disposition of power and terms of collective life—the ostensible domain of constitutionalism—on this linear view, history is a swift arrow moving away from the architecture of old charters of government, except when they can be conveniently adapted to the needs of automation and accumulation. A self-aware constitutionalist would also have to be a candid antiquarian. 

            (4)

We would suggest that to understand today’s political situation, one must combine these three basic insights – ancient theories of the cycle of political time, the modern theory of constitutionalism as democratic will-formation, and the political economy view of modern capitalism as the decisive, and increasingly exclusive, world-historical force in a unique path of linear time.

             We all have our parochialisms and our faiths. We are students of law and politics, and we do not believe that “the political”—meaning, collective will-formation aimed at constituting, legitimating, and directing the state—is an epiphenomenon of political economy, whether the latter is taken in a Marxian sense or as the kind of liberal-capitalist functionalism that figures like Thomas Friedman invoked to predict global convergence back in the Long 1990s. If you allow the relative autonomy of the political from the economic, then you have to think of politics in relation to capitalism without assuming capitalism necessarily does all the work. It strikes us as worthwhile, then, to ask, too, how the cyclical theory of political time might operate in a quasi-democratic capitalist society such as ours.

             Obviously, we can here offer only a sketch, but capitalism seems likely to be an accelerant of cyclical political time. Its rapid expansion of wealth, social churn, and popular expectations, combined with its well-established tendencies to accelerating inequality and oligarchic takeover of key state functions, should intensify the crises that ancient theorists regarded as more or less inevitable anyway. In the Roman paradigm, we’re in the “late Republic” on steroids: like the Gracchi brothers before them, the two Kennedys were assassinated at a moment when major redistribution to support equal citizenship still seemed possible. But we’re not oligarchic Rome as the unrivalled power in its sphere but the preeminent state in a generalized geoeconomic competition, which sets the terms of any possible class compromise at home. Thus it may be that, even if democratic will-formation might be enough to slow or arrest the cycle—as in the most ambitious arguments for social democracy—capitalism operating on a global scale reintroduces the drivers of crisis in too powerful a form for democratic constitutionalism to manage, partly by pitting the problem at a level of remove from the terrain on which any actual democratic politics can contain it. A good deal of twentieth-century social thought concerned the tendency of capitalist societies to foment specifically political crises, signally of the nationalist-fascist form, in effect as a distorted version of collective self-assertion in a society where stabilizing forms of security and meaning were overridden by the imperatives of automation and accumulation. There were many versions, and we will only note that anyone who dips into the mainstream of this work—Karl Polanyi, Erich Fromm, Theodor Adorno and his colleagues—will find, along with much that is dated, a great deal that is unsettlingly resonant. The full globalization of this regime adds new layers of complex acceleration.

             Without summarizing these lines of work, let us note one example of an effort to convert political cycle theory into the terms of modern political life. Consider an idea that Theodor Adorno developed in the shambolic, brilliant, flawed classic of twentieth century social theory (weakened throughout by its aspiration to be social science), The Authoritarian Personality. There Adorno described what he called the “pseudo-conservative,” who overtly embraced traditional order and hierarchy, but mostly because those gave him an opportunity to hate and denounce whoever was seen as a threat to those—someone, in short, seeking an expression of anarchic and destructive energies, cloaked in inheritance, decorum, and discipline. For such a person, Adorno argued, there would be eldritch charm in “the usurper narrative,” the idea that the people now in power are illegitimate and must be driven out to restore proper rule. Because the usurper is illegitimate, any degree of rage and violence against him (them) is licensed, all in the name of restoring proper order. Resisting a usurper authorizes the maximum degree of wild destructiveness and self-righteous rectitude. It is the way that a conservative can have the frisson of the “burn it all down” radical. The usurper story is uncannily, perfectly present in Donald Trump’s short and poisonous national political career, built originally on the “birther” claim that Barack Obama was constitutionally disqualified from the presidency (because he was born in Kenya, you see) and so not properly the country’s head of state at all. 

The U.S. constitutional scheme proves perversely fertile ground for this troublesome political disposition. Because we are caught in an old constitutional order that overlays multiple republics on one another within a persistent set of inflexible institutions, electoral minorities like the one that brought Trump to power can rule the rest through the presidency, the senate, and the supreme court. It is no wonder that those who are subjected to this rule, making up actual pluralities and majorities of the country, experience themselves as under a kind of occupation. By the same token, because we have no functional and agreed-upon means of constitutional change, it is always possible for conservatives to insist, including on good-faith grounds, that the present order is a kind of usurpation, by invoking the principles of a prior republic, never yet repealed. The structural failings in our system of self-rule make us one another’s occupiers in ways that leave us regularly vulnerable to the charge of usurpation. Charges of usurpation are preludes to delegitimization and the transvaluation of values: standard moves in the cycle of political regimes. 

            This makes us a bit more worried than Jack who, as ever, seems to play it cool. If you take the cycles theory seriously, and add capitalism as an accelerant, then things don’t look great. With these bleaker alternatives in mind, we certainly hope Jack is right that a decade of crisis is the worst we should expect (as he seems to suggest). Jack does note at the end of the book the stakes of the current class conflict, with neoliberal elites in the donor class of both parties putting the brakes on a clean-out of “constitutional rot.” Nevertheless, he seems to think we’ll get the republic tottering along again quickly enough. 

           Jack thus proves himself thoroughly modern in his idea of constitutionalism. That wouldn’t be news to him. Again, we hope he’s right.

Jed Britton-Purdy is William S. Beinecke Professor of Law at Columbia Law School. You can reach him by e-mail at <jpurdy@law.columbia.edu>.

David Singh Grewal is Professor of Law at Berkeley Law School. You can reach him by e-mail at <david.grewal@berkeley.edu>.