Tuesday, September 01, 2020

The Cycles of Constitutional Time (Oxford University Press, 2020)


Oxford University Press has just published my new book, The Cycles of Constitutional Time.  Here is a summary of the book by chapter:

General Summary of the Book

America's constitutional system evolves through the interplay between three cycles: the rise and fall of dominant political parties, the waxing and waning of political polarization, and alternating episodes of constitutional rot and constitutional renewal. America's politics seems especially fraught today because we are nearing the end of the Republican Party's long political dominance, at the height of a long cycle of political polarization, and suffering from an advanced case of "constitutional rot." Constitutional rot is the historical process through which republics become increasingly less representative and less devoted to the common good. Caused by increasing economic inequality and loss of trust, constitutional rot seriously threatens the constitutional system. But America has been through these cycles before, and will get through them again. America is in a Second Gilded Age slowly moving toward a second Progressive Era, during which polarization will eventually recede.

The same cycles shape the work of the federal courts and theories about constitutional interpretation. They explain why political parties have switched sides on judicial review not once but twice in the twentieth century. Polarization and constitutional rot alter the political supports for judicial review, make fights over judicial appointments especially bitter, and encourage constitutional hardball. The Constitution ordinarily relies on the judiciary to protect democracy and to prevent political corruption and self-entrenching behavior. But when constitutional rot is advanced, the Supreme Court is likely to be ineffective and may even make matters worse. Courts cannot save the country from constitutional rot; only political mobilization can.

Chapter One: The Recent Unpleasantness

American politics appears dysfunctional because the country is going through a very difficult transition. Understanding politics in terms of recurring cycles can offer some hope in troubled times. There are three cycles at work: a cycle of the rise and fall of political regimes; a cycle of polarization and depolarization; and a cycle of constitutional rot and renewal. America is facing similar challenges as other constitutional democracies, but America's party system, institutional history, and constitutional structures affect the way that our politics processes these challenges. Hence there is reason for a guarded optimism. We are at the end of our Second Gilded Age which will give way to a Second Progressive Era. Even in our bitterly polarized world, we can already see signs of how American politics will eventually depolarize, creating new opportunities for cross-party collaboration.

Chapter Two: The Cycle of Regimes

American political history has featured a series of successive governing regimes in which political parties compete.  During each regime one of the parties tends to dominate politics practically and ideologically. The regime rises and falls. We are at the end of the Reagan regime which began in the 1980s, in which the Republican Party was the dominant party and set the basic agendas of politics. That regime has become the victim of its own success and is now nearing exhaustion.

Stephen Skowronek's model of presidential leadership in political time suggests that Donald Trump is probably a disjunctive president who brings the Reagan regime to a close. Politics during the last years of a regime are often confusing and dysfunctional, and this period is no exception. Trump may avoid disjunction and give the Reagan regime a second wind, like William McKinley did in 1896. Although this possibility is very real, it runs counter to long-term demographic trends. The next regime is more likely to feature the Democrats as the dominant party.

Chapter Three: The Cycle of Polarization

American politics features very long cycles of polarization and depolarization between the political parties. Politics polarized leading up to the Civil War and remained polarized until the end of the First Gilded Age. Then began a long period of depolarization. Polarization started increasing once again in the middle of the twentieth century, and we are now near the peak of the current cycle. Polarization is a characteristic feature of the Reagan regime. Although Republican politicians used strategies of polarization to gain power, polarization made it increasingly difficult for them to govern, and will eventually lead to the regime's undoing.

Polarization tends to last for very long periods of time. Nevertheless, our current polarization will eventually recede, for reasons similar to the depolarization that began in the early 20th century: rates of immigration are gradually decreasing, demands for redistributive programs are growing, and the party coalitions will become increasingly incoherent, making cross-party deals possible once again. But these processes will occur slowly. We should not expect relief overnight.

Chapter Four: Constitutional Crisis

America's dysfunctional politics and Donald Trump's presidency have caused many people to worry that the country is in the middle of a constitutional crisis. That is not the case. A constitutional crisis occurs when a constitution is about to fail at its central purpose—to keep struggles for power within the boundaries of law and the Constitution. Constitutional crises are rare in American history, and America is not currently in a constitutional crisis, although it is facing a series of worrisome political crises. When Americans talk about constitutional crisis, they are really describing constitutional rot, which is discussed in the next chapter.

Chapter Five: The Cycle of Constitutional Rot and Renewal

For the past thirty years the United States has been suffering from increasing constitutional rot. Constitutional rot is the decay of the features of a constitutional system that maintain it both as a democracy—responsive to popular will, and as a republic—devoted to the public good. The Constitution's framers believed that all republics would eventually decay, so they designed the constitutional system so that things would bottom out before the country turned to mob rule, oligarchy, or dictatorship. They sought to buy time for democracy so that the inevitable periods of constitutional rot would be followed by periods of constitutional renewal.  There have been three major episodes of constitutional rot in our history: the rise of the Slave Power in the years before the Civil War, the First Gilded Age, and this, our Second Gilded Age.

Constitutional rot often produces demagogues. Donald Trump is a demagogue. His rise to power was made possible because constitutional rot has been growing for a long time. The bad news is that constitutional rot in the United States is by now very advanced. The good news is that political changes offer possibilities for renewal.

Chapter Six: Judicial Review in the Cycles of Constitutional Time

The cycles of constitutional time affect the work of the federal judiciary in multiple ways. Because of life tenure, the judiciary is a lagging indicator of the cycles of politics.  Hence judicial time is often out of sync with political time.  Judicial review is shaped by the strategy of partisan entrenchment: the political parties attempt to install jurists who will be ideologically sympathetic. The cycles of constitutional time affect the political supports for judicial review—the reasons why politicians accept judicial review and have helped to construct the power of the federal courts over time.

Chapter Seven:  How the Rise and Fall of Regimes affects Judicial Review

The rise and fall of regimes shapes partisan attitudes about judicial review. How people feel about judicial activism and judicial restraint depends on where they are in political time, and which party tends to control the federal courts. The parties' positions are mirror images. Over the course of a regime, the dominant party increasingly relies on judicial review to achieve its goals, while the opposition party becomes increasingly skeptical of judicial review and advocates judicial restraint—although neither party ever fully abandons using judicial review to advance its policies. As the cycle moves from the beginning of a regime to its final days, the parties—and the legal intellectuals allied with them—gradually switch positions. The party of judicial restraint becomes the party of judicial engagement, and vice-versa. The effect, however, is generational; older people may stick with their hard-won lessons about the courts, while younger generations, who have very different experiences, take contrary positions.

Chapter Eight: The Role of Constitutional Theory in the Cycle of Regimes

Constitutional theories such as originalism and living constitutionalism evolve to reflect the changing attitudes of partisans and legal intellectuals in political time. They also develop to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s, which led to the constitutional struggle over the New Deal. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump Administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.

Chapter Nine: How Cycles of Polarization and Depolarization Shape the Exercise of Judicial Review

The cycle of polarization and depolarization affects the political supports for judicial review. When politics is depolarized, politicians tend to let judges handle basic constitutional questions so that politicians can fight over the spoils of everyday politics. Judicial review tends to enforce the values of national political elites, especially against state and local governments.

When the country is polarized, however, elite consensus evaporates. Political elites disagree about everything, so judicial review cannot do the same work. Instead, judicial review allows polarized political elites to win victories they can no longer win in the political process. As legislative politics becomes mired in polarization, the judiciary becomes an ever more important venue for achieving policy victories. This increases the urgency and bitterness of partisan fights over judicial appointments. Strong polarization encourages the parties to engage in constitutional hardball to secure ideologically aligned judges and prevent the other party from appointing judges.

Chapter Ten: Law in the Time of Constitutional Rot

In periods of advanced constitutional rot, judicial decisions become especially polarized. Judicial majorities tend to reach decisions that increase economic inequality, shrink the electorate, and help maintain political oligarchy.  Members of the dominant party want judges to help them stay in power, to support politicians’ self-entrenching behavior, to defend and protect politicians from charges of corruption, and to enrich their financial supporters. When constitutional rot is advanced, the "high politics" of constitutional principle and the "low politics" of partisan advantage begin to converge. As a result, the judiciary tends to be part of the problem rather than part of the solution.

Ordinarily, the U.S. Constitution relies on the judiciary to protect democracy and republican government, and to prevent political corruption and self-entrenching behavior. But in periods of advanced constitutional rot, the Supreme Court and the federal judiciary are likely to be ineffective and may even make matters worse. Although courts may protect democracy intermittently, they may be the least reliable when the country needs them the most.

Chapter Eleven: Judicial Politics and Judicial Reform

In the early years of the next regime, conservative courts will face off against liberal Democratic politicians. Courts are very unlikely to be able to do much to repair constitutional rot. This does not mean that people should give up on judicial review; rather, it means that they should not put their hopes in an institution that cannot do much to cure deeper problems. Constitutional renewal must come from popular mobilizations and demands for reform, including constitutional reform.

Growing frustration with the courts will lead to calls for reform of the federal judiciary. Reforms should aim at lowering the stakes of judicial appointments and assisting depolarization. Court packing proposals achieve neither goal. Three better approaches are (1) instituting regular appointments to the Supreme Court; (2) achieving the equivalent of term limits for Supreme Court Justices by changing quorum rules; (3) increasing the Court's workload (instead of limiting its jurisdiction); and (4) using sunrise provisions that take effect in the future so that partisan advantages are harder to predict. Each of these proposals can be implemented constitutionally through ordinary legislation.

Chapter Twelve: The Turn of the Cycles

In the emerging party system, the Democrats will probably be the dominant party. The two major political parties will face off over identity issues like race, sexuality and religion, but each party will be internally divided over issues of class and economic inequality. These fissures will become more pronounced over time and help provide a long-term path for depolarization.

Because each party will have both a populist and a neo-liberal wing, new forms of cross-party alliances become possible—although the Democrats will remain more economically egalitarian than the Republicans for the foreseeable future. Whoever figures out how to create these cross-party coalitions will drive the direction of reform.

The next regime will probably be turbulent and politics will be anything but peaceful. Real change that breaks the stranglehold of economic inequality will only come from difficult times that still lay ahead. The good news is that the cycles of constitutional time are slowly turning. The elements of renewal are available, if people have the courage to use them.

* * * * *

Advance Praise for The Cycles Of Constitutional Time

“With a masterful command of political science, history, and the law, Jack Balkin has put our current political and constitutional crisis into a broader and compelling context. The Cycles of Constitutional Time should be read by anybody and everybody trying to get a handle on where we are, why we are there, and where we might be going.”
—Norman Ornstein, Resident Scholar, American Enterprise Institute; co-author of One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate and the Not-Yet-Deported

“Of the many books written since and about the election of Donald Trump, few have achieved the vision and depth of Jack Balkin’s Cycles of Constitutional Time. Balkin mounts a comprehensive theory of the American regime, showing how various factors—the rise and fall of Reaganism, the increase in polarization, and deepening constitutional rot—not only brought us Trump but also, curiously and counterintuitively, might help dispose of him. Along the way, Balkin delivers one death blow after another to our most cherished beliefs, including the notion that it will be the Supreme Court that saves us. Far from being a cause for despair, Balkin’s bracing and unblinkered realism offers us, with a proper mix of caution and hope, a way to see past the current moment to a future of some promise.”
—Corey Robin, Professor of Political Science, Brooklyn College and the CUNY Graduate Center; author of The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump

“Balkin’s analysis of the threats to the constitutional order is both timely and incisive. There has been a lot of talk about our constitutional discontents, but Balkin brings a keen analytical eye and a needed historical perspective to bear to the issue. This book deserves a careful reading from anyone who is concerned about the foundations of the American political system and its future.”
—Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University; author of Constitutional Construction: Divided Powers and Constitutional Meaning

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