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The Cycles of Constitutional Time
What will happen to American democracy? The nation's past holds vital clues for understanding where we are now and where we are headed. In The Cycles of Constitutional Time, the eminent constitutional theorist Jack Balkin explains how America's constitutional system changes through the interplay among three the rise and fall of dominant political parties, the waxing and waning of political polarization, and alternating episodes of constitutional decay and constitutional renewal. If America's politics seems especially fraught today, it is because we are nearing the end of the Republican Party's political dominance, at the height of a long cycle of political polarization, and suffering from an advanced case of what he calls "constitutional rot." In fact, when people talk about constitutional crisis, Balkin explains, they are usually describing constitutional rot--the historical process through which republics become less representative and less devoted to the common good. Brought on by increasing economic inequality and loss of trust, constitutional rot threatens our constitutional system.But Balkin offers a message of We have been through these cycles before, and we will get through them again. He describes what our politics will look like as polarization lessens and constitutional rot recedes. Balkin also explains how the cycles of constitutional time shape the work of the federal courts and theories about constitutional interpretation. He shows how the political parties have switched sides on judicial review not once but twice in the twentieth century, and what struggles over judicial review will look like in the coming decades. Drawing on literatures from history, law, and political science, this is a fascinating ride through American history with important lessons for the present and the future.
254 pages, Kindle Edition
Published August 17, 2020
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March 1, 2021
File this one under "foundational texts capable of saving humanity that no one will ever read because yelling at each other on the internet is easier."
There are two conventional lines of constitutional reasoning: Originalism, which interprets the law to discern the original intent of the Framers, and Living constitutionalism, which interprets the law in the context of our ever-changing environment.
These are both valid lines of reasoning, but what if there was a third one that didn't require evaluation of legal matters against a fixed point in time? Balkin argues that there are in fact three cycles of constitutional time, and instead of looking at time as linear, we should consider ourselves on pendulums of these cycles, which are:
1. The cycle of regimes - these are periods, usually lasting a few decades, where one like-minded group is able to win more influence than others. Where we are in a regime cycle is indicative of the type of election winners and leadership we can expect. Right now, we are in the decline and possibly end of the Reagan Regime, a conservative response to the previous New Deal regime. A new regime typically forms when an old one loses its cohesiveness through political mistakes and the aging out of its founders. The New Deal Regime was a strong period of liberal values which declined after the mishandling of Vietnam and economic shifts during the 1970s. Bad presidents, including demagogues like Trump, typically mark the end of a regime along with voting preferences and mainstream ideas shifting toward the new regime.
2. The cycle of polarization - this one is driven by economic inequality, and it will probably surprise no one to learn that we are at a peak in polarization right now. Comparable peaks in US history can only be found just prior to the Civil War (inequality driven by slavery), and during the Gilded Age around the turn of the 20th century (inequality driven by immigration and unchecked capitalism).
3. The cycle of constitutional rot and renewal - these are defined by the constitution's ability (renewal) or inability (rot) to protect us from the collapse of our republic. There is some discussion here on what defines a constitutional crisis: Trump firing a lot of people, judges following party lines, and other things that give the impression of instability are not constitutional crises and we hurt ourselves by treating them as such. Civil war, coup, and insurrection ARE constitutional crises, so it will probably again surprise no one that we are at a high point in constitutional rot right now, driven by the other cycles combined with a lack of trust in the political process bred by polarization and bad policy. Balkin cites an inadequate response to the economic factors around the 2008 market crash as our current "bad policy" driver - Vietnam was the equivalent at the end of the New Deal regime.
There is good news and bad news. As the eclipse cover art reminds us, cycles are exactly that - shifts over time that occasionally align with beautiful or terrifying results. The bad news is, we are currently at the end of a regime, a peak in polarization, and high constitutional rot; what Balkin describes as "an eclipse of democracy." The good news is - hopefully - this is only a temporary alignment and with political activism, we can nudge the cycles back to a more balanced state.
This is the first 1/3 of the book (about 6o pages). The remaining 2/3 discusses the impacts of the above on the judiciary, which tends to lag the cycles. The Reagan regime, being a conservative regime, understandably appointed mostly conservative judges to federal courts. If we are moving to a new liberal regime, we will see the lag in the judiciary in a few years with mainstream opinions and elected leaders leaning left, while federal courts continue leaning right. This does not bode well for decreasing polarization or increasing constitutional renewal, so Balkin suggests a number of judicial reforms that could reduce party entrenchment and hopefully break up the polarized gridlock we see right now.
I gave a four stars instead of five because this book can't decide what it wants to be. The first section - describing the cycles and where we are in layman's terms - has the potential to transform our current political discourse. I almost wish it had been a standalone article in the Atlantic or similar, because then the latter 2/3 if the book reads like a graduate-level textbook. The author is (checks notes) a professor of constitutional law at Yale so I guess that makes sense.
Bottom line: an excellent book, I wish everyone would read it and make at least a half-hearted attempt to form political opinions based on systemic thinking instead of knee-jerk emotion. One can always hope.
There are two conventional lines of constitutional reasoning: Originalism, which interprets the law to discern the original intent of the Framers, and Living constitutionalism, which interprets the law in the context of our ever-changing environment.
These are both valid lines of reasoning, but what if there was a third one that didn't require evaluation of legal matters against a fixed point in time? Balkin argues that there are in fact three cycles of constitutional time, and instead of looking at time as linear, we should consider ourselves on pendulums of these cycles, which are:
1. The cycle of regimes - these are periods, usually lasting a few decades, where one like-minded group is able to win more influence than others. Where we are in a regime cycle is indicative of the type of election winners and leadership we can expect. Right now, we are in the decline and possibly end of the Reagan Regime, a conservative response to the previous New Deal regime. A new regime typically forms when an old one loses its cohesiveness through political mistakes and the aging out of its founders. The New Deal Regime was a strong period of liberal values which declined after the mishandling of Vietnam and economic shifts during the 1970s. Bad presidents, including demagogues like Trump, typically mark the end of a regime along with voting preferences and mainstream ideas shifting toward the new regime.
2. The cycle of polarization - this one is driven by economic inequality, and it will probably surprise no one to learn that we are at a peak in polarization right now. Comparable peaks in US history can only be found just prior to the Civil War (inequality driven by slavery), and during the Gilded Age around the turn of the 20th century (inequality driven by immigration and unchecked capitalism).
3. The cycle of constitutional rot and renewal - these are defined by the constitution's ability (renewal) or inability (rot) to protect us from the collapse of our republic. There is some discussion here on what defines a constitutional crisis: Trump firing a lot of people, judges following party lines, and other things that give the impression of instability are not constitutional crises and we hurt ourselves by treating them as such. Civil war, coup, and insurrection ARE constitutional crises, so it will probably again surprise no one that we are at a high point in constitutional rot right now, driven by the other cycles combined with a lack of trust in the political process bred by polarization and bad policy. Balkin cites an inadequate response to the economic factors around the 2008 market crash as our current "bad policy" driver - Vietnam was the equivalent at the end of the New Deal regime.
There is good news and bad news. As the eclipse cover art reminds us, cycles are exactly that - shifts over time that occasionally align with beautiful or terrifying results. The bad news is, we are currently at the end of a regime, a peak in polarization, and high constitutional rot; what Balkin describes as "an eclipse of democracy." The good news is - hopefully - this is only a temporary alignment and with political activism, we can nudge the cycles back to a more balanced state.
This is the first 1/3 of the book (about 6o pages). The remaining 2/3 discusses the impacts of the above on the judiciary, which tends to lag the cycles. The Reagan regime, being a conservative regime, understandably appointed mostly conservative judges to federal courts. If we are moving to a new liberal regime, we will see the lag in the judiciary in a few years with mainstream opinions and elected leaders leaning left, while federal courts continue leaning right. This does not bode well for decreasing polarization or increasing constitutional renewal, so Balkin suggests a number of judicial reforms that could reduce party entrenchment and hopefully break up the polarized gridlock we see right now.
I gave a four stars instead of five because this book can't decide what it wants to be. The first section - describing the cycles and where we are in layman's terms - has the potential to transform our current political discourse. I almost wish it had been a standalone article in the Atlantic or similar, because then the latter 2/3 if the book reads like a graduate-level textbook. The author is (checks notes) a professor of constitutional law at Yale so I guess that makes sense.
Bottom line: an excellent book, I wish everyone would read it and make at least a half-hearted attempt to form political opinions based on systemic thinking instead of knee-jerk emotion. One can always hope.
August 27, 2021
The author’s premise – that there are several cycles of what he calls constitutional time – that one can observe and even predict roughly not only “where” we are in those stages but also “when” a cycle is about to turn – is interesting but also, for me, a tad tenuous.
While I will be presenting Professor Balkin’s argument, largely in his own words, in a moment, I did want to express my own reservation. While I appreciate that his thesis poses a stark opposite to the so-called Great Man Theory of History – that is, history can and has been significantly impacted by the presence of significant figures throughout history (think of Jesus of Nazareth, Galileo, Lincoln, and FDR as just some examples of this) – I also am a little uncomfortable with viewing historical events as things which can be “explained” as part of inevitable and recurring cycles.
My discomfort notwithstanding, Professor Balkin’s book is fascinating and interesting.
He writes, “To understand what is going on today in the United States, we have to think in terms of political cycles that interact with each other and create remarkable – and dark – times….”
“What is especially interesting about our current situation is that there is more than one cycle eat work. In fact, there are three. And when these three cycles converge, when they all line up in a certain way, the result is a sort of political eclipse of the sun, a very dark and disturbing time….”
“…the cycles that I will discuss here…arise through the interaction of political will with institutional structures. People cause these cycles through mobilization, organization, and the exercise of political will in a particular institutional environment. The institutions shape the actions, while the effects of the actions slowly remake the institutions.”
“What are the three cycles at work in American politics? 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 constitutional time.”
He then offers “seven central points that will frame my argument. First, we are not polar in a constitutional crisis. peak polarization, and this Second, we are suffering from a severe case of constitutional rot. Third, we are at (what one can only hope is) peak polarization, and this polarization is connected to constitutional rot. Fourth, the federal judiciary, which is a lagging indicator of events, is not likely to be very helpful in getting us out of current difficulties; it is part of the problem, not part of the solution. Fifth, the path out of constitutional rot will be political mobilization and reform movements, like those in the first decades of the twentieth century. We are in our Second Gilded Age, and on the cusp of a Second Progressive Era. Sixth, it is already possible to see how the reorganization of our major party coalitions will lead to depolarization, which, in turn, will make bipartisan solutions possible once again. Seventh, and perhaps most important, our recent unpleasantness is only a temporary condition. We are in transition – a very difficult, agonizing, and humbling transition – but a transition nevertheless.”
“Only democratic mobilization that calls upon the best parts of our constitutional tradition can bring the country out of its current problems, and this effort will take some time.”
The rest of the book is where he fleshes out these positions. In at least one macro-sense I fully agree with him: the history of the United States is one where “the people” repeatedly have to:
1. Beat back the ever-present desire of the wealthy and powerful few (usually the same people and their agents);
2. Work to understand an ever-expanding sense of what democracy entails and whom it embraces – think of our very difficult history with Black people, even after the end of the Civil war; the slow acceptance of the equality of women (for the right to vote as well as to equal access to the workplace and multiple professions);
3. Struggle with their own prejudices against some of “the people” – people of color, immigrants, different ethnicities and faith traditions, etc.;
4. Identify the true champions of “the people” from the pretenders, hangers-on, and would be demagogues; and
5. Having won most of those battles only for a time finding that – once more, as in our own time, they have to wearily pick up the same damn cudgel yet another time!
There never has been a “perfect” time in our history, we have never realized fully the dream of democracy and lived equality, and we always struggled against wily and enduring agents of the Dark Side of the Force.
Democracy, in other words, is not for wimps. It requires constant vigilance and the necessity of most citizens at least keeping a sharp eye out for corruption and lies. Needless to say, “the people” do not always do so well in fulfilling their obligations as citizens.
I find it encouraging that Professor Balkin also connects times of severe income inequality with times of constitutional and regime rot. We are living in one of those times now.
He has several chapters devoted to the judiciary, and they merit close attention. Personally, and like many of the Anti-Federalists who expressed grave reservations about aspects of the Constitution that emerged from the summer of 1787, I have long had very mixed feelings about the judiciary, especially the Supreme Court.
When I was younger (and considerably more naïve) I thought that the idea of judicial review of state and federal acts exciting and necessary. Now, as an older person with a more jaded view of human nature, I have grave reservations about it. For, as Balkin so ably demonstrates with case after case, the Supreme Court has always played the role of preserving the ideology and policies of the previous political regime. And, for most of our history as a nation, the Supreme Court has been a repeated obstacle in advancing human rights, worker rights, and ethnic and gender rights.
With the sad packing of the courts under the Trump administration, Balkin predicts – based on history – that we are in for years of right-wing interpretations of the Constitution that will cripple, or completely block, long pent-up progressive legislation (providing, of course, that such legislation somehow manages to pass an evenly divided Senate).
Balkin proposes several moderate steps that could be implemented to weaken this lock on the past by future Supreme Courts that I found interesting and that I hope future Congresses and presidents will seriously consider.
That which is new is not always better or wiser, but it is not good or desirable policy for the understanding of a rigid past to suppress or undermine policies that current generations of citizens deeply desire through the agency of nine Justices.
Overall, the book is worth your while, and I thank Professor Balkin for having written it!
While I will be presenting Professor Balkin’s argument, largely in his own words, in a moment, I did want to express my own reservation. While I appreciate that his thesis poses a stark opposite to the so-called Great Man Theory of History – that is, history can and has been significantly impacted by the presence of significant figures throughout history (think of Jesus of Nazareth, Galileo, Lincoln, and FDR as just some examples of this) – I also am a little uncomfortable with viewing historical events as things which can be “explained” as part of inevitable and recurring cycles.
My discomfort notwithstanding, Professor Balkin’s book is fascinating and interesting.
He writes, “To understand what is going on today in the United States, we have to think in terms of political cycles that interact with each other and create remarkable – and dark – times….”
“What is especially interesting about our current situation is that there is more than one cycle eat work. In fact, there are three. And when these three cycles converge, when they all line up in a certain way, the result is a sort of political eclipse of the sun, a very dark and disturbing time….”
“…the cycles that I will discuss here…arise through the interaction of political will with institutional structures. People cause these cycles through mobilization, organization, and the exercise of political will in a particular institutional environment. The institutions shape the actions, while the effects of the actions slowly remake the institutions.”
“What are the three cycles at work in American politics? 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 constitutional time.”
He then offers “seven central points that will frame my argument. First, we are not polar in a constitutional crisis. peak polarization, and this Second, we are suffering from a severe case of constitutional rot. Third, we are at (what one can only hope is) peak polarization, and this polarization is connected to constitutional rot. Fourth, the federal judiciary, which is a lagging indicator of events, is not likely to be very helpful in getting us out of current difficulties; it is part of the problem, not part of the solution. Fifth, the path out of constitutional rot will be political mobilization and reform movements, like those in the first decades of the twentieth century. We are in our Second Gilded Age, and on the cusp of a Second Progressive Era. Sixth, it is already possible to see how the reorganization of our major party coalitions will lead to depolarization, which, in turn, will make bipartisan solutions possible once again. Seventh, and perhaps most important, our recent unpleasantness is only a temporary condition. We are in transition – a very difficult, agonizing, and humbling transition – but a transition nevertheless.”
“Only democratic mobilization that calls upon the best parts of our constitutional tradition can bring the country out of its current problems, and this effort will take some time.”
The rest of the book is where he fleshes out these positions. In at least one macro-sense I fully agree with him: the history of the United States is one where “the people” repeatedly have to:
1. Beat back the ever-present desire of the wealthy and powerful few (usually the same people and their agents);
2. Work to understand an ever-expanding sense of what democracy entails and whom it embraces – think of our very difficult history with Black people, even after the end of the Civil war; the slow acceptance of the equality of women (for the right to vote as well as to equal access to the workplace and multiple professions);
3. Struggle with their own prejudices against some of “the people” – people of color, immigrants, different ethnicities and faith traditions, etc.;
4. Identify the true champions of “the people” from the pretenders, hangers-on, and would be demagogues; and
5. Having won most of those battles only for a time finding that – once more, as in our own time, they have to wearily pick up the same damn cudgel yet another time!
There never has been a “perfect” time in our history, we have never realized fully the dream of democracy and lived equality, and we always struggled against wily and enduring agents of the Dark Side of the Force.
Democracy, in other words, is not for wimps. It requires constant vigilance and the necessity of most citizens at least keeping a sharp eye out for corruption and lies. Needless to say, “the people” do not always do so well in fulfilling their obligations as citizens.
I find it encouraging that Professor Balkin also connects times of severe income inequality with times of constitutional and regime rot. We are living in one of those times now.
He has several chapters devoted to the judiciary, and they merit close attention. Personally, and like many of the Anti-Federalists who expressed grave reservations about aspects of the Constitution that emerged from the summer of 1787, I have long had very mixed feelings about the judiciary, especially the Supreme Court.
When I was younger (and considerably more naïve) I thought that the idea of judicial review of state and federal acts exciting and necessary. Now, as an older person with a more jaded view of human nature, I have grave reservations about it. For, as Balkin so ably demonstrates with case after case, the Supreme Court has always played the role of preserving the ideology and policies of the previous political regime. And, for most of our history as a nation, the Supreme Court has been a repeated obstacle in advancing human rights, worker rights, and ethnic and gender rights.
With the sad packing of the courts under the Trump administration, Balkin predicts – based on history – that we are in for years of right-wing interpretations of the Constitution that will cripple, or completely block, long pent-up progressive legislation (providing, of course, that such legislation somehow manages to pass an evenly divided Senate).
Balkin proposes several moderate steps that could be implemented to weaken this lock on the past by future Supreme Courts that I found interesting and that I hope future Congresses and presidents will seriously consider.
That which is new is not always better or wiser, but it is not good or desirable policy for the understanding of a rigid past to suppress or undermine policies that current generations of citizens deeply desire through the agency of nine Justices.
Overall, the book is worth your while, and I thank Professor Balkin for having written it!
January 7, 2023
Balkin looks at American history as a series of cycles resulting from four factors all related to polarization and its negative effects on our political system: a.) generations polarized by an event die off; b.) party coalitions change as they begin to fracture; c.) income inequality becomes more pronounced leading to corruption and political protests; and finally d.) immigration slows in response to events or policies and that diminishes a source of anger.
He has identified three of these cycles that cause the rise and fall of political parties and alternate what he calls constitutional rot and renewal through its affect on the courts and constitutional interpretation.
Race is a crucial element in the rise and fall of these cycles. Even though Balkin doesn’t explicitly use race as one of the organizing principles of the book, race is clearly a fundamental factor in all of American politics, as he acknowledged in a recent law review article. 1 Each of the cycles has deep connections to successive political struggles in the United States over race and racial equality. The coalitions that rise and fall often do so because of massive disagreements regarding slavery (before the Thirteenth Amendment) and race (after it, often intertwined with immigration.) Nothing is more polarizing than race in American society.
The cycles are characterized by what he calls regimes, each dominated by one particular party. The dominant party may not win all the elections in a given regime, but it sets the agenda. The three he identifies are Federalists v Agrarian Republicans and Jacksonian Democrats; Republican domination during and after the Civil War; the Democratic domination during the New Deal; and the waning one we are currently in of the Reagan Republicans.
In the first cycle, Jefferson won over John Adams only because of the 3/5ths clause (see also Garry Wills’ book)2 That clause determined the presidential winners for the next half century by giving power to the slave-holding states. Eight of the first nine presidential elections were won by candidates who were plantation owners from Virginia. As there was a requirement that Supreme Court justices had to live in the state where they rode circuit, Jacksonian Democrats made sure that a majority of the circuits were composed of slave-holding states. This, in turn, helped ensure that a majority of Justices were from slave-holding states, or were otherwise sympathetic to the interests of slavery. “The defense and expansion of slavery had become a dominant force in American politics.”
The second major regime cycle was the dominance of the Republicans (1860-1932). Again, race was crucial, as the ending of the slave-state dominance became a goal of the new regime. Initially concerned primarily with the rights of newly freed slaves, as the years wore on, the Republican regime became less concerned about racial equality and more concerned about the defense of business interests. Support for black suffrage was also undermined by white violence and terrorism so the goals of the regime changed. As the Democrats began to win more elections (1874 they won both houses) they changed state constitutions to make black voting more difficult and the Republicans interests were more focused on economic issues. Their Supreme Court emphasized the protection of capital and business, in 1888 reinforcing the idea that corporations had the same rights as persons, thus using the 14th Amendment in a way completely foreign to its creators. “These decisions reflected the evolution of the Republican regime during the Gilded Age. The Republican Party transformed from a multi-racial coalition devoted to equal rights for all citizens into a coalition primarily concerned with the protection of business interests, including the interests of railroads and other corporations.”
The thirties saw the rise of black migration to the north, where they could vote with less hindrance. The Depression fueled antagonism toward the moneyed classes and big business, so northern Democrats created a new regime that relied on emphasis on individual and civil rights.
“Political depolarization allowed cross-party alliances on different issues. But the success of the New Deal coalition always rested on a Faustian bargain concerning race. Southern and northern Democrats agreed on economic issues, but not on race. Democratic unity frayed following the election of Truman who infuriated southern Democrats with his integration of the military and other support for civil rights, so they began to flee to the Republican Party. This was deliberately accentuated by Nixon who courted southern racists. The New Deal coalition was doomed over differences in race. Even though Johnson beat Goldwater handily, he managed to win five southern states, a harbinger of the future. Opposition to desegregation, court-ordered busing and affirmative action became key issues in American politics. A racist demagogue, Alabama Governor George Wallace, managed to attract a large number of Democratic voters in the 1968 presidential election.
The Reagan regime was formed by a coalition of Catholics, evangelicals, southern Democrats, and white voters concerned about black civil rights. They swept presidential elections for the next 20 years. Republican politicians and conservative political entrepreneurs discovered that the key to becoming the nation’s dominant party was to fight the culture wars and make issues of race, religion, morality, and culture the central focus of their campaigns. It was very effective at splitting the Democratic Party. Law and order became a euphemism for keeping the blacks in their place. For example, the Reverend Jerry Falwell, who founded the Moral Majority, was first drawn to the New Right not because of opposition to abortion but because the federal government refused to allow tax exemptions for private “segregation academies” that discriminated on the basis of race. Falwell’s decision to focus on abortion came in the late 1970s, well after Roe v. Wade was decided.
Continuing the campaign, Trump found multiple ways to invoke race and racial stereotypes both during the 2016 campaign and throughout his presidency. Republican political strategies on culture and race have made Republicans increasingly a white person’s party. Moreover, the party has been losing college-educated professionals and suburbanites – who became independents or Democrats – for white working-class voters, especially in the South and rural areas. Balkin notes this is not a good strategy for a party that wants to remain in power. Indeed, “since George H.W. Bush’s victory in 1988, the Republican Party has won the popular vote for the Presidency only once, in 2004. This is not good news for a political party that wants to remain dominant.”
This would seem to imply that the Reagan/Republican cycle is nearing an end. Not necessarily write Balkin. “In the 2020 election, however, Donald Trump attracted a slightly larger number of Black and Latino voters – particularly male voters – than he had in 2016....Trump’s modest inroads with non-white voters probably surprised Democrats, who assumed that these voters would never vote for an overt racist like Trump. But this neglects several factors. First, minority voters are not monolithic. They have conflicting and cross-cutting values, which will become ever more salient as the percentage of non-white voters in the population grows. Second, many non-white voters are culturally conservative and aspire to be prosperous members of the middle class; this may attract them to the Republican Party.” Republican talent for winning in smaller states that hold the balance in the Electoral College may also become a factor, as it did with Trump in 2016 and George Bush in 2000.
The Founders feared despotism. Benjamin Franklin lectured his colleagues at the end of the convention: “I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.” To prevent this, the Founders decided on a divided government, a separation of powers. That worked until what Belkin describes as Constitutional rot sets in. It’s characterized by polarization, a lack of trust in government and fellow citizens, increased economic inequality, and failures in decision-making, a whole host of which led up to the Civil War. The Gilded Age was another example of constitutional rot with huge disparities in wealth, vast immigration, polarization, distrust in government because of policy mistakes, and violence including riots and anarchy.
Belkin thinks the GOP is coming to the end its regime that began with Reagan and we’re in a situation very similar to the end of the Gilded Age. There’s a donor class of wealthy individuals who seek and gain power to enrich themselves, thereby increasing economic disparity, vast distrust in government and fellow citizens, as well as extreme polarization fueled by the mediatainment empires. As I’m writing this, Kevin McCarthy has just failed the 13th ballot for Speaker, a suitable punctuation to Belkin’s thesis.
Related.:
1. Jack M. Balkin, Race and the Cycles of Constitutional Time, 86 MO. L. REV. (2021) Available at: https://scholarship.law.missouri.edu/...
2. Wills, G. (2005). Negro president: Jefferson and the slave power. Houghton Mifflin Harcourt.
3. Conlin, M. F. (2019). The constitutional origins of the American Civil War. Cambridge University Press.
4. Wilentz, S. (2016). The politicians and the egalitarians: The hidden history of American politics. W. W. Norton & Company.
5. Balmer, Randall. " The Historian’s Pickaxe: Uncovering the Racist Origins of the Religious Right." The Changing Terrain of Religious Freedom, 2021, pp. 173-185.
6. Balkin, Jack M. (2019) "The Recent Unpleasantness: Understanding the Cycles of Constitutional Time," Indiana Law Journal: Vol. 94 : Iss. 1 , Article 6.. Available at: https://www.repository.law.indiana.ed...
edited 1/6/23
He has identified three of these cycles that cause the rise and fall of political parties and alternate what he calls constitutional rot and renewal through its affect on the courts and constitutional interpretation.
Race is a crucial element in the rise and fall of these cycles. Even though Balkin doesn’t explicitly use race as one of the organizing principles of the book, race is clearly a fundamental factor in all of American politics, as he acknowledged in a recent law review article. 1 Each of the cycles has deep connections to successive political struggles in the United States over race and racial equality. The coalitions that rise and fall often do so because of massive disagreements regarding slavery (before the Thirteenth Amendment) and race (after it, often intertwined with immigration.) Nothing is more polarizing than race in American society.
The cycles are characterized by what he calls regimes, each dominated by one particular party. The dominant party may not win all the elections in a given regime, but it sets the agenda. The three he identifies are Federalists v Agrarian Republicans and Jacksonian Democrats; Republican domination during and after the Civil War; the Democratic domination during the New Deal; and the waning one we are currently in of the Reagan Republicans.
In the first cycle, Jefferson won over John Adams only because of the 3/5ths clause (see also Garry Wills’ book)2 That clause determined the presidential winners for the next half century by giving power to the slave-holding states. Eight of the first nine presidential elections were won by candidates who were plantation owners from Virginia. As there was a requirement that Supreme Court justices had to live in the state where they rode circuit, Jacksonian Democrats made sure that a majority of the circuits were composed of slave-holding states. This, in turn, helped ensure that a majority of Justices were from slave-holding states, or were otherwise sympathetic to the interests of slavery. “The defense and expansion of slavery had become a dominant force in American politics.”
The second major regime cycle was the dominance of the Republicans (1860-1932). Again, race was crucial, as the ending of the slave-state dominance became a goal of the new regime. Initially concerned primarily with the rights of newly freed slaves, as the years wore on, the Republican regime became less concerned about racial equality and more concerned about the defense of business interests. Support for black suffrage was also undermined by white violence and terrorism so the goals of the regime changed. As the Democrats began to win more elections (1874 they won both houses) they changed state constitutions to make black voting more difficult and the Republicans interests were more focused on economic issues. Their Supreme Court emphasized the protection of capital and business, in 1888 reinforcing the idea that corporations had the same rights as persons, thus using the 14th Amendment in a way completely foreign to its creators. “These decisions reflected the evolution of the Republican regime during the Gilded Age. The Republican Party transformed from a multi-racial coalition devoted to equal rights for all citizens into a coalition primarily concerned with the protection of business interests, including the interests of railroads and other corporations.”
The thirties saw the rise of black migration to the north, where they could vote with less hindrance. The Depression fueled antagonism toward the moneyed classes and big business, so northern Democrats created a new regime that relied on emphasis on individual and civil rights.
“Political depolarization allowed cross-party alliances on different issues. But the success of the New Deal coalition always rested on a Faustian bargain concerning race. Southern and northern Democrats agreed on economic issues, but not on race. Democratic unity frayed following the election of Truman who infuriated southern Democrats with his integration of the military and other support for civil rights, so they began to flee to the Republican Party. This was deliberately accentuated by Nixon who courted southern racists. The New Deal coalition was doomed over differences in race. Even though Johnson beat Goldwater handily, he managed to win five southern states, a harbinger of the future. Opposition to desegregation, court-ordered busing and affirmative action became key issues in American politics. A racist demagogue, Alabama Governor George Wallace, managed to attract a large number of Democratic voters in the 1968 presidential election.
The Reagan regime was formed by a coalition of Catholics, evangelicals, southern Democrats, and white voters concerned about black civil rights. They swept presidential elections for the next 20 years. Republican politicians and conservative political entrepreneurs discovered that the key to becoming the nation’s dominant party was to fight the culture wars and make issues of race, religion, morality, and culture the central focus of their campaigns. It was very effective at splitting the Democratic Party. Law and order became a euphemism for keeping the blacks in their place. For example, the Reverend Jerry Falwell, who founded the Moral Majority, was first drawn to the New Right not because of opposition to abortion but because the federal government refused to allow tax exemptions for private “segregation academies” that discriminated on the basis of race. Falwell’s decision to focus on abortion came in the late 1970s, well after Roe v. Wade was decided.
Continuing the campaign, Trump found multiple ways to invoke race and racial stereotypes both during the 2016 campaign and throughout his presidency. Republican political strategies on culture and race have made Republicans increasingly a white person’s party. Moreover, the party has been losing college-educated professionals and suburbanites – who became independents or Democrats – for white working-class voters, especially in the South and rural areas. Balkin notes this is not a good strategy for a party that wants to remain in power. Indeed, “since George H.W. Bush’s victory in 1988, the Republican Party has won the popular vote for the Presidency only once, in 2004. This is not good news for a political party that wants to remain dominant.”
This would seem to imply that the Reagan/Republican cycle is nearing an end. Not necessarily write Balkin. “In the 2020 election, however, Donald Trump attracted a slightly larger number of Black and Latino voters – particularly male voters – than he had in 2016....Trump’s modest inroads with non-white voters probably surprised Democrats, who assumed that these voters would never vote for an overt racist like Trump. But this neglects several factors. First, minority voters are not monolithic. They have conflicting and cross-cutting values, which will become ever more salient as the percentage of non-white voters in the population grows. Second, many non-white voters are culturally conservative and aspire to be prosperous members of the middle class; this may attract them to the Republican Party.” Republican talent for winning in smaller states that hold the balance in the Electoral College may also become a factor, as it did with Trump in 2016 and George Bush in 2000.
The Founders feared despotism. Benjamin Franklin lectured his colleagues at the end of the convention: “I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.” To prevent this, the Founders decided on a divided government, a separation of powers. That worked until what Belkin describes as Constitutional rot sets in. It’s characterized by polarization, a lack of trust in government and fellow citizens, increased economic inequality, and failures in decision-making, a whole host of which led up to the Civil War. The Gilded Age was another example of constitutional rot with huge disparities in wealth, vast immigration, polarization, distrust in government because of policy mistakes, and violence including riots and anarchy.
Belkin thinks the GOP is coming to the end its regime that began with Reagan and we’re in a situation very similar to the end of the Gilded Age. There’s a donor class of wealthy individuals who seek and gain power to enrich themselves, thereby increasing economic disparity, vast distrust in government and fellow citizens, as well as extreme polarization fueled by the mediatainment empires. As I’m writing this, Kevin McCarthy has just failed the 13th ballot for Speaker, a suitable punctuation to Belkin’s thesis.
Related.:
1. Jack M. Balkin, Race and the Cycles of Constitutional Time, 86 MO. L. REV. (2021) Available at: https://scholarship.law.missouri.edu/...
2. Wills, G. (2005). Negro president: Jefferson and the slave power. Houghton Mifflin Harcourt.
3. Conlin, M. F. (2019). The constitutional origins of the American Civil War. Cambridge University Press.
4. Wilentz, S. (2016). The politicians and the egalitarians: The hidden history of American politics. W. W. Norton & Company.
5. Balmer, Randall. " The Historian’s Pickaxe: Uncovering the Racist Origins of the Religious Right." The Changing Terrain of Religious Freedom, 2021, pp. 173-185.
6. Balkin, Jack M. (2019) "The Recent Unpleasantness: Understanding the Cycles of Constitutional Time," Indiana Law Journal: Vol. 94 : Iss. 1 , Article 6.. Available at: https://www.repository.law.indiana.ed...
edited 1/6/23
November 29, 2021
I tend to work through my thoughts on a book in real time. Just for my own future self's benefit, since nobody's going to read my anonymous goodreads reviews. It results in a poorly written, ranting review. But who cares, certainly not the zero people who will read this far.
Forces beyond (most) humans' control create cycles in every civilization, but maybe none as much as in the U.S. which is founded on a document that was meant to last for the long haul. I'd read Jack Balkin researching the 14th amendment, and wanted to hear more of this perspective. There's no denying that we're in the golden age of political polarization. Everybody has a hot take they're just sure is correct, and is going to change people's mind. Never mind the infinite other perspectives and experiences that shape each worldview, dear twitter user... your personal research has given you all the answers.
Constitutional rot seems to be everywhere, for mostly financial/power gain. It's willful ignorance, deliberate misinterpretation for the sake of being right/"winning". People agree what's in the constitution, it's right there. The first and second amendments, at least, are clear in their phrasing. But people discard them when it's convenient. I.e. "you have freedom of speech, but it doesn't protect you from getting your ass beat by a mob!", or "I know it says 'right to bear arms' with no qualifications, but they meant muskets, not aSsAult RiFLes!!'".
Those two, along with 13 & 14 which confirmed that ALL men are created equal, are in my opinion the most important, and the rot is strongest when the most power can be gained or lost. The rot will speed up the cycles causing more polarization and eventually a crisis, whether it's in 10 years or 100. When that happens the importance of amendments 1 & 2 will be painfully clear, I just hope they haven't rotted too much.
Forces beyond (most) humans' control create cycles in every civilization, but maybe none as much as in the U.S. which is founded on a document that was meant to last for the long haul. I'd read Jack Balkin researching the 14th amendment, and wanted to hear more of this perspective. There's no denying that we're in the golden age of political polarization. Everybody has a hot take they're just sure is correct, and is going to change people's mind. Never mind the infinite other perspectives and experiences that shape each worldview, dear twitter user... your personal research has given you all the answers.
Constitutional rot seems to be everywhere, for mostly financial/power gain. It's willful ignorance, deliberate misinterpretation for the sake of being right/"winning". People agree what's in the constitution, it's right there. The first and second amendments, at least, are clear in their phrasing. But people discard them when it's convenient. I.e. "you have freedom of speech, but it doesn't protect you from getting your ass beat by a mob!", or "I know it says 'right to bear arms' with no qualifications, but they meant muskets, not aSsAult RiFLes!!'".
Those two, along with 13 & 14 which confirmed that ALL men are created equal, are in my opinion the most important, and the rot is strongest when the most power can be gained or lost. The rot will speed up the cycles causing more polarization and eventually a crisis, whether it's in 10 years or 100. When that happens the importance of amendments 1 & 2 will be painfully clear, I just hope they haven't rotted too much.
July 13, 2021
As a non-expert, I don’t know how to evaluate the main theory of the book (the three cycles) or the author’s predictions about the future. However, this book gave me a fantastic introduction to the history of American legal theory.
In particular, the book situates the idea of constitutional originalism in history, and shows how legal theorists’ interpretations of originalism change with the rise and fall of dominant parties, and the shifting political orientation of the Supreme Court (see Chapter 8).
The empirical section of the book (Section 2, Chs. 6-10) suggests that the judiciary is always a realm of political contestation, and that there is no reason to expect the courts to be neutral in areas where the constitution’s prescription is open to interpretation.
My sense is that the author wants to defend some version of originalism from a liberal perspective, and he does not support court packing. However his policy suggestions in Chapter 11 include effective term limits for the Supreme Court, among other ideas, and his arguments are very reasonable.
With all this in mind, the current structure of the judicial system and the SC in particular should be subject to revision, and not viewed as an end in itself.
In particular, the book situates the idea of constitutional originalism in history, and shows how legal theorists’ interpretations of originalism change with the rise and fall of dominant parties, and the shifting political orientation of the Supreme Court (see Chapter 8).
The empirical section of the book (Section 2, Chs. 6-10) suggests that the judiciary is always a realm of political contestation, and that there is no reason to expect the courts to be neutral in areas where the constitution’s prescription is open to interpretation.
My sense is that the author wants to defend some version of originalism from a liberal perspective, and he does not support court packing. However his policy suggestions in Chapter 11 include effective term limits for the Supreme Court, among other ideas, and his arguments are very reasonable.
With all this in mind, the current structure of the judicial system and the SC in particular should be subject to revision, and not viewed as an end in itself.
January 4, 2021
This book is fascinating. It discusses constitutional crisis and then notes we are not in one (although some days since published seems like it) and describes changing regimes and the concept of constitutional rot. Worth the read to understand how we are on the cusp of a new political regime.
Read
July 7, 2022Read for research for a professor after 1L, actually do recommend it a lot
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