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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Where We are in Political Time - The Post- Reagan Interregnum and Trump's Revolutionary Politics
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Wednesday, June 14, 2023
Where We are in Political Time - The Post- Reagan Interregnum and Trump's Revolutionary Politics
JB
My 2020 book, The Cycles of Constitutional Time, was finished in late 2019 and I made minor adjustments in 2020, just as the pandemic was starting but before the 2020 election and the January 6th, 2021 coup attempt. It's only three and a half years ago but it seems like ages. In Cycles I argued that the Reagan regime was ending and that a new regime would form in the next five to ten years, probably one with the Democrats as the dominant party, although there was a chance that Trump would form a new Republican regime organized around White Christian nationalism. What do things look like today? The Post-Reagan Interregnum The best way to summarize the situation is that the Reagan regime has ended but no new regime has yet formed. The United States is currently being offered the choice of two potential new regimes, one led by Joe Biden and the Democrats, and the other led by Donald Trump as leader of the MAGA Republicans. It is true that the Democrats won the 2020 presidential election, but Biden had only razor thin majorities in Congress, hardly the strong electoral victory that confirms that a new dominant coalition has formed and is in the drivers' seat. We are thus in a tenuous interregnum and it is still an open question which kind of regime will successfully form. We won't know until several election cycles have passed, and it's possible that neither party will grow strong enough to form a new regime for a decade or more. In Cycles, I predicted that we would have an answer in five or ten years, that is, by around 2030. But at present, that's not at all clear. One might object that Democrats have demographic advantages, that they have won the popular vote in seven out of the last eight presidential elections, and that Republicans have only been able to win the Presidency through the Electoral College. But this overlooks the fact that a minority party can still leverage different features of the electoral system to dominate politics for a time. If the Republicans manage to form a new regime-- or more precisely, as central to forming such a regime-- they will continue to refashion elements of the political system so that they can stay in power whether or not they enjoy robust majority support. We should not confuse the dominant party in a regime with a party that represents the majority of the country, especially if the country slides toward some form of competitive authoritarianism. Nor do changing demographics prevent the formation of a dominant party that is Trumpist. In 2020, Trump showed that it was possible to make inroads with minority voters, especially in the two crucial states of Texas and Florida. For Republicans to dominate national politics going forward, they only need to gain a little more minority support, especially among Hispanic voters. In fact, we can expect that Republicans will run campaigns that emphasize that conservative Hispanic voters should make common cause with conservative working class white voters, especially on culture war issues and religion. And although this may confound liberal Democrats, one should expect that, over time, a significant share of Hispanic voters will consider themselves comfortably part of a White Christian nationalist coalition which emphasizes patriotism, Christianity, and reaction to the sexual revolution. Becoming part of a White Christian nationalist coalition will be a harder sell for many Black voters; even so, the number of socially and religiously conservative Black voters attracted to the Republican Party will likely increase over time, and the amount doesn't have to be all that large for Republicans to do well nationally. Presidential leadership Cycles built on Stephen Skowronek's typology of presidential leadership styles. In one possible future described in the book, Trump is a disjunctive president who presides over the dissolution of the older Reagan regime. Either Biden or a later Democratic president reconstructs American politics and a new regime forms. The other possibility described in the book was that Trump creates a new regime organized around White Christian Nationalism, deeply corrupt and authoritarian, with Trump as the reconstructive leader. These two alternatives suggest that Trump is playing a dual role. He has brought the Reagan regime to a close, which makes him a disjunctive president in Skowronek's model. Yet Trump is now offering himself as a transformative president who seeks to reconstruct American politics in his image. If he wins a second term, he will have gone a very far distance toward succeeding. Thus he is both disjunctive in Skowronek's terms and (potentially) reconstructive. And from the standpoint of his party -- as opposed to the country as a whole -- Trump is almost certainly a reconstructive leader. All this makes Trump very different from previous examples of disjunctive presidents. John Adams, John Quincy Adams, James Buchanan, Herbert Hoover, and Jimmy Carter did not remake their parties in their image either during their presidencies or especially after they were defeated in the polls. (Of this group, only John Quincy Adams had a later career as a distinguished member of the House of Representatives). In addition, unlike every previous disjunctive president, Trump is the leader of a mass movement that is deeply devoted to him. The standard portrait of disjunctive presidents is quite different. They are often mavericks, to be sure, but they do not lead social movements. And not to put too fine a point on it, John Adams was not the adored object of a cult of personality. Many Republican elites still regard Ronald Reagan as the symbol of their party. But for an increasingly large part of the Republican base, Trump has displaced Reagan as the central symbol of the party and what it stands for. He has thoroughly recreated the party so that people are either loyal to him, or feel it necessary to ape his brand of grievance-based culture war politics. The party of Reagan has become the party of Trump, and his influence appears to be lasting even if he never gets a second term. This difference is why we cannot treat Trump simply as a disjunctive president. He is like no previous disjunctive leader. He is currently bidding to become a reconstructive president and he has already completed one task we generally associate with such presidents, namely, transforming his party and its commitments of ideology and interest. For better and for worse, the Republican Party going forward is a rural working-class Trumpist party, even if Trump fades from the scene, and especially if he wins a second term. It is no accident that ambitious politicians like Ron DeSantis, Ted Cruz, Mike Lee, J.D. Vance and Josh Hawley have aligned themselves with Trumpism. They see it as the future of their party and their path to a future Republican presidential nomination. Perhaps if Trump is fully discredited, they will change their trajectory. But even if Trump is discredited, the Republican base will remain, and the base will expect Trump-like behavior from future presidential candidates. We should understand Trump's coup attempt and his multiple indictments in this light. Trump's argument is that he is a political hero whom the Democrats are trying to squash by illicit and unlawful means so that they can (illegitimately) retain power. Of course he staged a coup, because his enemies stole the 2020 election. (In the alternative, the whole thing was a set-up and Trump is being unfairly persecuted.) And of course he's been subjected to multiple indictments and legal attacks, because that is how the globalist elites in the other party hope to sideline him so that they can cling to power. For people outside his devoted followers, Trump's behavior makes him completely unelectable. But within his cult, the effect is precisely the opposite. The fact that Trump sits on the border of illegality is a feature, not a bug, in his claim to being a transformative, even revolutionary president. He is a revolutionary leader unlike any president who lost the presidency before him. His revolutionary bona fides are proven by the fact that he tried to stage a coup d'etat to stop a rigged election and by the fact that his political enemies are trying to eliminate him by any means necessary. His aura of illegality binds his followers to him, because they want to be part of the revolution too, and he, in turn, warns them that the forces coming after him are really coming after them. Outside his movement, this seems like self-serving spin and farcical nonsense. Within his movement, it feels like the truth. In my next post, I'll discuss Biden's (very different) strategy for political reconstruction.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |