Jack Balkin’s Dance to the Music of Time – Legislation & Liberty
The Cycles of Constitutional Time is not remotely as funny or engaging as its author, Jack Balkin, is in the flesh. It is, however, just as erudite, imaginative, thought-provoking, and generous. And just as over the top and wrong at a basic level.
Balkin, Knight Professor of Constitutional Law at Yale Law School, responds to “the widespread feeling that something has gone seriously wrong with constitutional democracy in the United States.” Amidst despair and cynicism, he argues that “the malaise is only temporary” and encourages readers to think “in terms of political cycles that interact with each other.” The cycles do not move of their own irresistible force; people drive them “through mobilization, organization, and the exercise of political will in a particular institutional environment.” But the cycles do turn, and on that score, Professor Balkin seeks to “offer a bit of hope for people who . . . fear that things are only going to get worse.”
What, then, are those cycles?
The first is the cycle of the rise and fall of political regimes in American history. The second is the cycle of polarization and depolarization. And the third is the decay and renewal of republican government, which I call the cycle of constitutional rot and constitutional renewal. . . . Each of these cycles operates on a different time scale. . . . Together, the interaction of these three cycles generate[s] constitutional time.
The first cycle is freely adapted from Yale Professor Stephen Skowronek’s theory of presidential regimes (which Professor Balkin re-conceptualizes as a theory of party-dominated “constitutional regimes”). The basic idea is that one of the two parties tends to dominate politics for extended periods. Over time, however, the regime fractures or fails to adjust to changed political and economic conditions, and a new dominant coalition takes its place. There have been six such cycles in our history, the two most recent being the New Deal regime and the Reagan era. That era, Professor Balkin argues, has come to an end. Obviously, he had to write in ignorance of the result of the current election; but to my mind, he is right.
The “polarization” cycle is Professor Balkin’s own. It is driven, he argues, by economic inequality. Polarization was very high in the Gilded Age, receded as inequality declined (Professor Balkin comes alarmingly close to celebrating the Great Depression: when fortunes are destroyed, the Gini coefficient goes down), and rose again beginning in the 1970s, with the end of broad-based prosperity and the dawning of our Second Gilded Age.
The third cycle, constitutional rot and renewal, is the most interesting part of Professor Balkin’s universe. It captures a meaningful distinction between decay and a constitutional crisis, when the constitutional system itself is at stake. For all of Mr. Trump’s erratic behavior, Professor Balkin maintains, we haven’t crossed that Rubicon. The author is commendably precise as to what he means by “constitutional rot”:
Constitutional rot is the process through which a constitutional system becomes less democratic and less republican over time. . . When public servants are increasingly diverted into the pursuit of their own wealth, or when they are increasingly diverted into serving the interests of a relatively small number of very powerful individuals, democracy and republicanism decay, and we have constitutional rot.
Constitutional rot also entails a gradual destruction of political norms of mutual forbearance and fair political competition, as well as a loss of trust between members of the public, between the public and government officials, and among government officials of different parties.
Professor Balkin identifies three periods of constitutional rot: the 1850s, the Gilded Age, and our own Second Gilded Age. He may be leaving something on the table here: what he calls “rot” is what Thomas Jefferson and his friends called “corruption.” They campaigned on the theme in 1800, and they won. That fits the cycle, and maybe that’s the kind of “redemption” story Jack Balkin should want to tell.
The New Deal, the regulatory explosion of the 1970s, and the alarming degree of congressional abdication and executive power accretion over the past two decades can easily be made to look like (cyclical?) rot.
The cycles interact. For example, polarization leads to rot, and rot in turn encourages polarization. We are now at peak polarization and peak corruption, and thus at a turning point in terms of constitutional regimes. That confluence, Professor Balkin writes, is strikingly similar to the conditions of the Gilded Age. Who or what, then, provides hope for constitutional renewal?
The Federal Courts, Party Politics, and Renewal
Not the federal judiciary, Professor Balkin argues. In an extended part of the book, he adds a fourth and fifth cycle, of jurisprudence and “judicial time.” Presidents, political parties, and even legal scholars will tend to shape their jurisprudential views—on a judicial “deference versus activism” dimension—in accordance with the needs of the time. The New Dealers’ hostility to federal courts eventually gave way to the Warren-Brennan Court’s activism. Originalism has likewise traveled from deference to “judicial engagement,” for the same structural reasons. Of course, a newly dominant coalition won’t want the “old” courts to mess with its agenda. As the new regime becomes entrenched and appoints its own judges, though, it will want to mobilize the courts for its program. And it will seek to accelerate the appointment of friendly judges when it is nearing its end—like now.
Over time, one expects the courts to fall in line with the dominant coalition, police the rules of the game, and discipline outliers (notably, recalcitrant states). But the lag between political and judicial time matters. We now confront a situation that we haven’t faced since the early 1930s: a federal judiciary at odds with political coalitions that occupy at least one-half of America’s political space and which are not about to go away. In that environment, Professor Balkin predicts, the judiciary may well exacerbate both polarization and constitutional rot. Armed with a pretty aggressive form of originalism, the Supreme Court “will continue to fight the culture wars” and “to shape its own docket in conversation with conservative litigators,” who will turn to the Court because it may be “the only institution in which conservative Republicans can score any significant policy victories.”
Chief Justice John Roberts’ sincere hope that the Court will serve as an impartial “umpire,” Professor Balkin writes in compelling passages, is wedded to a jurisprudential model that had great currency and plausibility to the Harvard law professors who taught the Chief in the 1970s: deep down, they believed in the institutional settlement of the New Deal, which envisioned the Court as a gentle traffic cop for an orderly politics. However, that ideal is mismatched to a period of high polarization, gridlocked politics, and deep elite dissension as to what constitutes a fair, republican form of government. In that predicament, the judiciary will look and act like a “vanguard,” not an arbiter. That is nothing to celebrate, Professor Balkin observes.
The real hope that the cycles might turn, Professor Balkin argues, is the fracturing party structure. Both parties are now organized around questions of identity (a sign, he says, of a constitutional regime that is nearing its end). Both comprise “populist” and “neo-liberal” wings and constituencies. The GOP cannot win reliably because young voters are leaving in droves or just not showing up. The Dems can win—provided that on class issues, they can make common cause with populists “from the other side of the aisle. If they do not figure out how to do this, the neoliberal wings of the two parties are likely to set the agenda.” Yet, good stuff may happen when:
Constitutional rot so disgusts Americans that reform movements develop in both parties. The party coalitions shift slowly, the most salient issues before the country change, and depolarization begins. Depolarization, in turn, creates the possibility of new policy initiatives that cross-cut the two-party coalitions, as well as opportunities for good-government reforms.
Just as the Gilded Age eventually gave way to the Progressive Era, so our Second Gilded Age may produce constitutional renewal, provided we seize the opportunity.
Is This Right?
Cycles of Constitutional Time is addressed primarily to a liberal audience. I admire the tone and the spirit in which it is offered: Be of good cheer. Don’t go crazy. Confront the rot but no, this is not a constitutional crisis. No, we should not try to pack the Court: that will make matters worse. (Professor Balkin instead offers proposals to regularize judicial appointments and to de-polarize the fight over the judiciary, and perhaps the Court itself. All quite sensible to my mind.) Go easy on identity politics, and see if you can find common, class-based ground with the deplorables and their congressional contingents.
All that is strikingly un-woke, and therefore gutsy. Still I wonder whether and how a theory of cycles helps to build an audience for Professor Balkin’s reformist, social-democratic politics. If people “understand the cycles of constitutional time,” the author writes, “they may come to believe that their democracy can be redeemed, and do their part to realize that worthy goal.” I don’t see it. People may or may not believe in redemption and may or may not do their part for any number of reasons. They don’t need a theory—unless, perhaps, it is really inspiring and convincing. A linear “arc of history” is at least the former; Balkin’s theory of cycles is neither.
At the risk of sounding like a recovering social scientist, a model with three interlocking, asynchronous cycles (let alone four or five) simply has too many moving parts—too many to prefer this story to linear or random stories, or for that matter to rival cyclical stories. A famous contrasting example—weirdly, very weirdly, never mentioned in this book—is the late Professor Samuel P. Huntington’s work on The Promise of Disharmony, which explains why American democracy has suffered a nervous breakdown every 40 years. Granted, that work can’t explain why, after the age of disco, we’re a decade late. And the eventual explanation (it all has to do with England in the 1640s) may be doubtful. But it’s descriptively compelling and far more elegant than a concatenation of cycles that strike me as analytically suspect and driven by dubious normative priors—for example, an obsession with economic inequality, and a lamentable indifference to the ruinous rent-seeking that drives our politics.
At the time of the Progressive era, people shared Balkin’s conviction that America needs a broad middle class as a barrier against oligarchy—but they had the weird idea that this middle class had to be built on independent work.
Consider Balkin’s polarization story. As he acknowledges, it may not be a “cycle” at all. Standard measures of partisan polarization over the past 130-plus years all look like a “u” curve: very high in the Gilded Age, falling substantially in later decades, and rising sharply beginning in the late 1970s. The only reason to think that this trend will reverse is that partisan polarization cannot exceed 100 percent (we’re very close now). And the notion that the so-called cycle is driven by economic inequality is, at best, a wild oversimplification. The moderation and bipartisan consensus of the 1950s had to do with the fact that Southern whites had ended up in the wrong (Democratic) party. Moreover, the middle-class prosperity of that era was built behind tariff walls and on the exclusion of black citizens. All that gets lost here.
As for the rot-and-renewal cycle. Try a slight reformulation of Professor Balkin’s definition:
Constitutional rot is the process through which a constitutional system becomes less democratic and less republican over time. . . When unaccountable public servants are diverted into the pursuit of their own wealth increasingly exercising arbitrary power over the lives and fortunes of private citizens, or when they are increasingly diverted into serving the interests of a relatively small number of very powerful individuals an ever-growing army of rent-seekers and hangers-on, democracy and republicanism decay, and we have constitutional rot.
On that definition—tendentious, perhaps, but not far from James Madison’s view of the matter—the New Deal, the regulatory explosion of the 1970s, and the alarming degree of congressional abdication and executive power accretion over the past two decades will look like (cyclical?) rot.
Try another variation on the theme: maybe democracy and republicanism decay when unelected federal judges decide seminal questions without a plausible constitutional basis. Your constitutional “cycle” may then run from Lochner down to West Coast Hotel and up again to Roe; and you’ll entertain a very different view of the Supreme Court’s past and prospective role. You may come to think that the notion of the Court as a “vanguard” of politics was really an invention of the Warren Court, and you may question Professor Balkin’s denunciation of vanguard courts. Vanguard judicialism tends to appear at the zenith of constitutional regimes, not at the end of old ones or the beginning of new ones. When a Court confronts an opposing dominant regime, it can’t aspire to be a “vanguard” of anything or anyone. It will try to maneuver on non-confrontational margins, especially under polarized conditions. Or so I’ve argued elsewhere.
I’m Still Balkin’
I’ll give Professor Balkin this: the parallels between the end of the Gilded age and our own are indeed quite striking. High levels of inequality; class conflict and a distrust of political and business elites; high levels of polarization; even the same electoral map, except with reverse party allegiances; a conservative Court: check, check, check, check, check. Pundits and party strategists, cyclists or not, have explored those analogies (Karl Rove comes to mind). But they only carry so far; and so, therefore, do predictions of a second Progressive era, or the possibility thereof.
The Progressive era produced four constitutional amendments. That ain’t going to happen, mercifully. (The original Progressives wrote prohibition into the Constitution. The only constitutional redemption in our present nightmare is that the liquor stores have remained open.) Back then the party system fractured, and new parties gained electoral votes. That ain’t going to happen now, either, at least not any time soon. A third difference is what Professor Balkin—again borrowing from Professor Skrowronek—calls “the waning of constitutional time”: with the build-up of encrusted and increasingly unwieldy institutions, the room for transformative politics shrinks. The Progressive Era brought us the Fed, the early FTC, and other institutions. Reforms on that scale ain’t going to happen now.
I’ll add two further differences, wholly and tellingly outside Professor Balkin’s purview but to my mind crucial to comprehending our predicament. One, the decades back then featured stupendous innovation in technology, industrial production, and industrial organization—and accompanying productivity gains. And two, people back then shared Professor Balkin’s conviction that America needs a broad middle class as a barrier against oligarchy—but they had the weird idea that this middle class had to be built on independent work. In that environment you can afford to make mistakes, and you can reasonably hope for renewed civic engagement and, dare I say, entrepreneurial spirit. We don’t have that margin for error—not with negligible innovation, miniscule productivity gains, and a Progressive insistence that the only good middle class (and it should be really big!) is one that depends on government employment or transfers, lest inequality break out in the private sector. Follow that program and you won’t get the Roaring Twenties. You’ll get a sullen, demoralized country.
“Politics is re-forming,” Professor Balkin writes in his final sentences. “The elements of renewal are available to us, if we have the courage to use them.” That could have been said, and in fact has just been said in almost haec verba, by the American Enterprise Institute’s Nicholas Eberstadt, in his fabulous Irving Kristol lecture. Nick discusses what “renewal” means, how much courage we can still marshal, whether our decrepit institutions can still translate civic courage into common politics, and what exactly that might mean or demand or entail. The answers to those urgent questions won’t hang on some dang cycle; they’ll hang on the good will and good cheer of folks on all sides. Like, say, Jack Balkin.