Wednesday, September 23, 2020

The Laws of Political Mechanics

Mark Graber

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

The first law of political mechanics is that an object in motion (or rest) will tend to stay in motion (or rest) unless acted on by an outside force.  This is path dependence.  Political choices at time A make more likely the same choice will be made at time B.  If we hire a constitutional lawyer today, we are more likely to hire another constitutional lawyer in the future because the political power of constitutional lawyers in our institution has increased.  The third law of political mechanics is that for every action there is an equal and opposite reaction.  This is cycling.  Political choices at time A make more likely we will make a different choice at time B. If we hire a constitutional lawyer today, we are more likely to hire torts person or a statistician tomorrow because we wish to have a subject matter diverse faculty.  Straining the metaphor even more, the second law of political mechanics is that the same formula can be used to determine acceleration in all times and places.  This is the constant.  The same factors that influence political choices at time A influence political choices at time B, no matter what contingent choice was made at time A.  We can debate how many constitutional lawyers should be on our faculty but someone must be associate dean or associate chair.

Cycles predominant in The Cycles of Constitutional Time.  Jack Balkin identifies three constitutional phenomenon, regimes, polarization and rot, that he claims cycle  Constitutional regimes are structured by a dominant party, that dominant party’s constitutional and policy commitments, the persons who that party mobilizes, and the political institutions that party constructs for achieving their commitments and mobilizing their partisans.  Polarization concerns the degree to which the party structure captures all salient political conflicts in a regime (conflict extension) and the extent to which each coalition can stomach the success of the other.  Constitutional rot measures the health of the regime, in particular, regime capacity to act on some notion of the political good and maintain basic democratic institutions.  All three, Balkin claims, are subject to the vagaries of political change.  American constitutional developed has witnessed the rise and fall of constitutional regimes, alternating periods of polarization and depolarization, and changing levels of constitutional rot. The three cycles are related, but partly autonomous.  Stephen Skowronek and Karen Orren might use the phrase “intercurrence” to describe their relationship.  The election of 2020 could bring about a new progressive regime without have much of any impact on the present state of polarization.

Cycles has an optimistic story to tell for those not enthralled by the present Republican regime, polarized politics, and constitutional rot.  The wheel of political fortune changes.  Regimes rarely last more than a generation, constitutional politics has depolarized in the past, and Americans have previously demonstrated the capacity to arrest and reverse constitutional rot.   Trump is more likely to represent the degeneration of the Reagan regime than a Republican renaissance.  History suggests conditions are ripe for a progressive renewal, though history also teaches that nothing is politically guaranteed.  Still, Balkin provides numerous reasons for being hopeful that progressives can successfully mobilize and fashion a regime in the image of that coalition.  If we were to take the cycles metaphor more seriously than Cycles does, progressives aware that change is the one constant in constitutional politics might be more troubled about the future if some version of the left presently controlled national politics, politics had an optimum level of polarization, and politicians were pursuing the public good in ways that enhanced constitutional democracy.

This is a remarkable manuscript.  More so than any work published in recent or ancient memory, Balkin synthesizes constitutional law, history, political science and jurisprudence.  Political science work is taken seriously and not merely used as a vehicle to support preordained conclusions.  Cycles demonstrates mastery of and makes important contributions to the political construction of judicial review, constitutional hardball, presidential time, contemporary originalism and pretty much every other scholarly trend over the past two generations that might be thought relevant to American constitutional politics, law, development and theory.  As important, the engaging writing style makes The Cycles of Constitutional Time accessible to anyone interested in American constitutionalism.  This is a study that we once described as appropriate for the beach or seminar room, although now the better description may be bedroom, kitchen, or basement office.  Just as the analyses of presidents over the past generation largely borrow from Stephen Skowronek’s categories in The Politics Presidents Make, so I suspect the analyses of American constitutional development over the next generation will largely borrow from Balkin’s categories.  We will ask, “where are we in constitutional time” and use Cycles as map for discovering our temporal location.

Consider the illuminating light Balkin’s analysis of constitutional scholarship casts on my recent work.  Scholarship, he notes, both structures and responds to regime change.  When conservatives controlled the courts, liberals were in favor of judicial restraint.  The dominant view among liberal scholars was that John Bingham’s views were idiosyncratic, the post-Civil War amendments were not intended to overturn the status quo dramatically, and the privileges and immunities clause of the Fourteenth Amendment did not incorporate the Bill of Rights.  Then liberals gained control of the courts.  Suddenly, activism seemed attractive.  Liberal scholars pronounced John Bingham the second coming of James Madison, celebrated the post-Civil War amendments as a Second Constitutional Founding/Revolution, and documented that the privileges and immunities clause was intended to incorporate the Bill of Rights.  Now conservatives are in control of the court.  My allegedly forthcoming work maintains that John Bingham was the only Republican who really cared about Section One of the Fourteenth Amendment, Section One adds little to the Thirteenth Amendment, which was understood as an empowerment (are you listening Democrats in Congress) rather than as a constraint (are you listening John Roberts), and that few persons other than Bingham thought the privileges and immunities clause incorporated the Bill of Rights (there goes decisions striking down state gun control laws, state campaign finance laws, takings clause jurisprudence, and probably attacks on affirmative action, a policy better grounded in the Thirteenth than Fourteenth Amendment, etc.).  What a coincidence.

Cycles is nevertheless a work by a law professor well read in other disciplines rather than a study by a scholar who stands above the disciplinary fray.  To begin with the obvious, Balkin is self-consciously progressive.  Cycles inspires (law) rather than merely explains (political science) or describes (history).  Potential progressive activists who might participate in political movements are as much, if not more, the target than those of us whose main ambition is to publish an article in Studies in American Political Development.  Social scientists maintain an air of neutrality, even when their findings clearly privilege one side of a partisan conflict.  The very use of “cycles” in Cycles reflects Balkin’s disciplinary place in the scholarly world.  Politics cycles in Cycles because politics changes.  One regime is replaced by another.  Politics has different levels of polarization at different times.  Constitutional rot increases and decreases.  Social scientists use “cycles” when referring to patterned change.  Politics does not simply change, but changes in regular and predictable fashions.  Regime change takes the form "A,B,A, B" rather than "A,B, T, 5, Bulgaria."  Steven Skowronek describes a cyclical phenomenon when he observes that the United States experiences reconstructive, affiliated, and disjunctive presidents in regular succession.  If, as Balkin maintains Donald Trump is a disjunctive president, the next important president will be a reconstructive president rather than an affiliated president. 

Social scientists treat cycles as one possible way the past structures the present.  Some political decisions create pressures to repeat that decision in the future.  This is path dependence.  Other political decisions create backlash that leads American constitutionalism down entirely different paths.  This may be cycling.  Social scientists who examine path dependence and cycling explore whether these political changes are consequences of contingencies or deep political structures.  Rogers Smith once asserted that commitments to liberalism were a constant feature of American constitutional politics.  He then maintained that versions of liberalism, republicanism and ascriptivism competed for supremacy, with the precise balance between these ideologies often determined by contingent political choices. 

Consider Sandy Levinson’s vital distinction between the Constitution of Conversation and Constitution of Settlement.  The Constitution of Conversation consists of those constitutional provisions that are subject to debate and political change.  Those provisions have been path dependent and cyclical tendencies.  The equal protection clause is a good example.  The way in which Brown v. Board of Education interpreted the equal protection clause helped set in motion or maintain in motion forces that, on the one hand, led to the Civil Rights Act of 1964 and Voting Rights Act of 1965 (path dependence) and, on the other, the rise of the Republican South (cycles).  The Constitution of Settlement consists of those constitutional provisions whose meaning is settled and are not subject to the vagaries of political change.  Those provisions behave as constants.  Rhode Island has always been a small state that gets the same number of Senators as the most populous state in the Union.

Political regimes in the United States cycle, both in the Balkinian sense that they change and in the social science sense that dominant political parties plant the seeds of their destruction.  One party dominance rarely lasts in American constitutionalism.  Victory over time spoils majority parties.  Dominant parties take on too many commitments, increasingly dissatisfying some of their core constituents.  Republicans in 1860 were united against slavery, but badly divided in 1880 over the respective roles that civil rights, the civil service, and promoting commercial prosperity through trains and tariffs should play in that coalition. Defeat invigorates minority parties.  Losing coalitions have incentives to find new issues that crosscut and befuddle present electoral winners.  Consider the influence of the tax revolt in California on the path of the then minority Republican party. 

Cycling appears to happen at regular intervals.  Majority parties last little longer than a generation unless they reorient their fundamental commitments such that the nature of political competition changes even as the names of the competitors remains the same.  Jacksonians replace Jeffersonians in the 1830s.  Republicans replace Jacksonians in the 1860s.  A different Republican coalition comes to power at the turn of the twentieth century.  Democrats replace that coalition in the 1930s.  That coalition is replaced in the 1980s by either Reagan Republicans (Balkin’s view) or by two polarized parties (my view).  We could be witnessing the beginnings of a new era of Republican rule, but as the frequently expressed disgust by Reagan elites of Trump demonstrates, the Republican party of Trump is fundamentally different than the Republican party of Reagan.  The new Democrats are also unlikely to be your grandparents (or parents) New Deal coalition.

Constitutional rot is path dependent.  In traditional political theory, once corruption set in, unless caught at the very beginning, a regime is doomed.  This was the Bailyn/Wood understanding of the American Revolution.  Americans had to revolt against fairly minor transgressions, because apparently trivial violations of the British Constitution were markers of corruption.  Unless nipped in the bud, such measures as the Sugar Act and Stamp Act were be replaced by more oppressive taxes and more intrusive bureaucracies would destroy republican liberty and the body politic.  Constitutional rot, in this sense, functions like a disease.  The state of your present health structures your future health.  The healthier you are today, the more likely you will be able to fight off a COVID infection tomorrow.  If you are infected with COVID, the evidence suggests you will be less healthy in six months than a person who was never infected.  This is classic path dependence.  Physical or political corruption may create countervailing forces.  A person who goes to the doctor for one condition may take steps that improve their overall health.  Political corruption may inspire the create of institutions that do a better job fighting corruption than the old institutions.  Perhaps the recent unpleasantness will inspire a constitutional convention that brings about a political renaissance in the United States.  Still, as the progression from Ross Perot to Sarah Palin to Donald Trump suggests, the main impact of constitutional rot is to weaken steadily institutions that promote democracy and the public good.  One of the Trump siblings seems a more likely political future than the next George Washington.

Polarization may be a constant, hardwired into the structure of American constitutional politics.  One cause of polarization is the Constitution of the United States, the relevant provisions of which have not changed for more than two-hundred years.  Both presidentialism, which encourages a two party system, and having every national official elected in a local election, which encourages extremism, fuel polarization.  The Apportionment Act of 1842, which requires single-member district strengthens two-party politics which, in turn, may create a constant bias towards polarization. Depolarization, by comparison, may have been a consequence of a distinctive form of racial politics unlikely to recur in the foreseeable future.

Race has been the crucial variable that determines the degree of polarization in American constitutional politics.  One crucial feature of the depolarized politics that structured constitutional politics for much of the twentieth century is that persons of color did not vote.  The era began when persons of color were disenfranchised and race issues largely disappeared from American national politics.  The era ended when persons of color were enfranchised and became able to wield some political power.  Republicans began hunting where the ducks are, namely racist whites who feared Great Society programs threatened white supremacy.  Trump’s main contribution to polarization in the United States is teaching Republicans that they do need the dog whistle when appealing to white racial resentment.  On this account, when race structures political competition, political competition polarizes.  If this is right, then not all our ills will be resolved in the next turn of the political cycle.  Progressives can win only by mobilizing persons of color, but that mobilization is the historic cause of polarization in the United States.  At the very least, the history of race in the United States suggests the challenge progressives face when attempting to convince (white) Americans not to cast racially charged ballots. 

The impact of income inequality, which as Balkin observes, plays a substantial role in polarization and rot, may be a variable that is exhibiting some path dependent characteristics.  Differences between the rich and the poor vary over time, and the effect of that difference also varies over time.  Some evidence indicates both that the impact of wealth differentials steadily increases while, relatedly, the possibility of policies that diminish wealth inequality steadily decrease.  New technologies regularly exacerate the influence of wealth on politics.  In 1900, political campaigns needed bodies to spread the word.  That gave unions some power, as unions had bodies.  Now access to the media which can be purchased by a single individual.  Wealthy individuals and corporations can dominant politics the Donald Trumps (or Kennedys) of the world no longer need less affluent citizens to play as active roles in their political campaigns.  Globalization, which shows no sign of abating, exacerbates the gap between the rich and the poor.  The New Deal sought to provide safety nets by workers by obliterating previous lines between the states.  The next New Deal will have the much more difficult task of obliterating lines between nations in ways that promote rather than retard inequality.  Prospects seem bleak and the alternative even bleaker.  The main event that may have reduced income inequality in the United States was World War Two, which required mobilization of a great many men.  Our present wars do not require that level of mobilization and are likely to be so destructive as to prevent meaningful economic recovery by the survivors, if any.

Race and income inequality play rather different roles in Cycles and, for that matter, Democracy and Dysfunction, the work Balkin and Levinson published several years ago.  Race is central to the new progressive coalition Balkin expects to dominant American constitutional politics during the next political generation.  That coalition is composed of persons of color, African-Americans in particular, women, and well educated liberals in the suburbs.  Unions play an historical role in Cycles and in Democracy, but  have little contemporary function.  Workers per se are either conceded to Republicans or do not seem to matter politically independent of their race, gender or sexual orientation.  Abortion rights are important, but silence reigns on binding arbitration, which as Sarah Staszak has demonstrated, is an important means by which Republicans and the Roberts Court subvert the rights of workers.

The absence of unions from Cycles and from contemporary progressive constitutional theory more generally is problematic.  Unions were the main engine of income and political equality during the twentieth century.  Nothing has replaced them or is likely to replace them in the foreseeable future.  Union membership has become increasingly non-white, which helps explain the decline of unions.  In their important book, Union by Law, Michael McCann and George Lovell detail the operation of racial capitalism, a conception of the American regime that is central to an important strand of Law and Society thinking.  Paul Frymer documents how strong unions play vital roles in reducing the racial resentment that leads many workers to vote against the economic interests.  Thinking about how the Constitution, race, and income inequality interact, these works and others suggest, is central to gaining an understanding of our political regime, polarization and constitutional rot and, as important, vital to mapping the routes out of the present unpleasantness that Balkin documents with such care and concern

Older Posts
Newer Posts