Jack M. Balkin - The Cycles of Constitutional Time

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Jack Balkin 2020

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Library of Congress Cataloging-in-Publication Data

Names: Balkin, Jack. M., author.

Title: The cycles of constitutional time / Jack M. Balkin.

Description: New York : Jack Balkin, 2020. | Includes index.

Identifiers: LCCN 2020004528 (print) | LCCN 2020004529 (ebook) |

ISBN 9780197530993 (hardback) | ISBN 9780197531020 (oso) |

ISBN 9780197531006 (updf) | ISBN 9780197531013 (epub)

Subjects: LCSH: Constitutional lawPolitical aspectsUnited States. |

United StatesPolitics and government2017

Classification: LCC KF4552 .B345 2020 (print) | LCC KF4552 (ebook) |

DDC 342.73dc23

LC record available at https://lccn.loc.gov/2020004528

LC ebook record available at https://lccn.loc.gov/2020004529

For Bruce Ackerman

It is also a fitting description of our current political predicament. Of course, I am not suggesting that the United States is currently in the middle of a civil war, or that we will soon be in a civil war. Rather, the expression conveys a widespread feeling that something has gone seriously wrong with constitutional democracy in the United States. The stark political and cultural polarization of American life, the raucous 2016 election, and the tabloid meanderings of the Trump presidency have only seemed to confirm a growing despair about the future of democracy in the United States.

This book takes a longer view. It argues that the malaise is only temporary. I will use tools from constitutional theory and from political science to try to explain what is happening to American politics: how we got where we are, and where we are likely to be headed in the next few decades. But first, let me offer a little astronomical diversion.

On August 21, 2017, an amazing event occurred over large parts of the United States: a total eclipse of the sun. It is an amazing spectacle, and some people have called it a life-altering event. Stunning as these events are, we know that they will soon be over.

Our present condition is a little like an eclipse, although much less enjoyable. 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 remarkableand darktimes.

In American constitutional law, however, people tend not to think in terms of cycles. Rather, they think about time in linear terms. The two most well-known approaches to constitutional interpretation in the United States involve linear visions of time. One is originalism, and the other is living constitutionalism.

Originalism is linear because it rests on an implicit storyabout how we have moved further and further away from the moment in time that grounds the authority of the Constitution and the correct meaning of the Constitution. To interpret the Constitution correctly, we must restore the meaning at a moment that has long since passed. We must return to that moment, metaphorically speaking. We must restore the correct interpretation and not stray from it again. The problem of interpretation arises precisely from the fact that time is linear: that we move ever further away from the moment that grants authority.

Originalism can also be a story of decaya concern with what we have lost and about the need for restoration and renewal. As we move further and further away in time from the source of constitutional meaning and authority, we make mistake after mistake in our interpretations of the Constitution. Judges in particular are tempted to stray from the original meaning and impose their personal predilections. So we must find a way to retrace our steps and return to the original meaning that is the source of constitutional authority. That is the only way to restore and ground our constitutional system.

The other standard theory of constitutional interpretation is called living constitutionalism. This is the idea that as history progresses, so too should our Constitution.If we keep the Constitution in touch with the times, it will not only function better, but it will approach justice as well.

These views are obviously opposed to each other, and yet its worth noting what they have in common. They are linear conceptions of time. We move away from the past, for good or for ill.

But that is not the only way to think about historical change. If you asked the Ancient Greeks or the Ancient Chinese, they would have disagreed. They would have argued that history moves in cycles, not in straight lines away from the past.

Modern American historians have also been fond of cycles. Henry Adams argued that American history moved like a pendulum between concentrations of power to diffusions of power.

In order to have a cyclic view of history, you dont have to believe that things occur exactly in the same way they occurred before. Rather, you can take the view, often attributed to Mark Twain, that history doesnt repeat itself, but it does rhyme. That is the general approach I will develop in this book. I invite you to think of the events that we are going through like the strains of a ballad that repeatedly returns to its refrain, although with many changes and variations along the way.

But of course, things are not quite as simple as that. What is especially interesting about our current situation is that there is more than one cycle at 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. What one gets, in other words, is the recent unpleasantness.

Of course, the cycles that I will discuss here are quite different from the cycles that cause the eclipse of the sun. They 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.

In this book, I will talk about what I expect is going to happen in the next few decades. Unlike eclipses, however, one cant be entirely sure of the future. Politics is not astronomy, and human affairs do not operate like clockwork. Moreover, we cant assume that everything is already foreordained: that if people simply sit on their hands and do nothing, the cycles I describe in this book will take care of themselves. Quite the contrary. I am telling a story about what happens in the long run, but it is not a deterministic story. The actions of many individuals over time, pursuing their values and interests, but constrained by institutional arrangements, will tend to cycle in intelligible ways. But people have to actually pursue those interests. They have to be motivated to respond to the problems they face. Above all, they cant allow themselves to be overcome by despair and paralyzed into inaction.