Cock-eyed Optimist Meets Chicken Little: Jack Balkin on the American Future.

• Author: Levinson, Sanford Victor
• Position: A New Hope? An Interdisciplinary Reflection on the Constitution, Politics, and Polarization in Jack Balkin's "The Cycles of Constitutional Time"

Given that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, (1) it is not surprising that I think very highly of and agree with much of Jack Balkin's new book, The Cycles of Constitutional Time (2) I read it in two sittings; it is a real page-turner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from the beginning of the new national government in 1789 to the present. (3) It is a book to be savored and studied, particularly with regard to the interplay of his three analytically separable cycles, dealing, respectively, with the developments of the party system that structures so much of our politics; polarization; and the role played by the federal judiciary - or, more particularly, the Supreme Court - in trying to adjudicate or control some of the implications of the first two. It is also, inevitably, a book to argue with.

For me, the central question is whether Jack ultimately has a tragic or a comic view of our constitutional saga. Will there be bodies strewn all over the stage at the end of the play, or will there be whatever might be the modern equivalent of a "constitutional marriage," with smiles all around and stories as to how the now-happy country surmounted a variety of challenges and travails to achieve their happy ending? Jack, I believe, has an ultimately comedic view. He forthrightly states, both at the beginning of the book and again at the end, that for all of the justified depression we might feel at the present moment about the health of our constitutional order - during which, for example, I have posted suggestions that the preferable alternative to the incipient civil war is peaceful dissolution of the United States - it is ultimately only the darkness before a brighter dawn. (4) It might take quite a while for us to dig our way out of the multiple problems facing us today - including what I regard his most important analytical contribution, the notion of "constitutional rot" (about which more anon) - but do not lose hope. Thus, the concluding words of the book:

The problems of American democracy will not be cured overnight, or even in a decade. Constitutional rot is a stubborn condition; emerging from it will be a painful process. The good news is that the cycles of constitutional time are slowly turning. Politics is re-forming. The elements of renewal are available to us, if we have the courage to use them. (5)

From the moment that Professor Litton introduced Jack at the Missouri Law Review symposium, a great deal of emphasis was placed on the "hope" he articulated and, therefore, engendered in his sympathetic readers. Perhaps this was more true if one read it before the election, when it appeared - and I think Jack himself anticipated - a resounding repudiation not only of Donald J. Trump, which one can argue did in fact happen, but also of the contemporary Republican Party that had acquiesced in its service as Trump's enablers. If one wishes to be even harsher, many of his Republican supporters might well have been described, in Lenin's term, as as "useful idiots" willing to contribute their stature to endorsing modes of political conduct that one suspected they had qualms about, or even detested, in private.

The latter repudiation did not occur. Quite remarkably, Republicans picked up seats in the House of Representatives, leaving Nancy Pelosi with the smallest majority of any recent Speaker. (6) And Republicans, even after Georgia's remarkable election on January 5, 2021, retain half the seats in the Senate, losing their majority only because Vice President Harris will be spending far more time at the Capitol than she probably envisioned in order to break tie votes. (7) Moreover, former University of Missouri School of Law Professor Josh Hawley, a product of Stanford and the Yale Law School, has lent himself to collaborating with Trump's most demagogic and anti-democratic (and not only anti-Democratic) fantasies about non-existent "frauds" that deprived Trump of the majority support he delusionally believes was his. (8) As the Kansas City Star has written, Hawley has "blood on his hands" (9) with regard to his de facto legitimation of the attempted coup that occurred at the Capitol on January 6, 2021. That he surely did not "intend" those events is equivalent to the claim of a callow child whose playing with matches set off a forest fire. And even though Mitch McConnell will become the Minority Leader in the Senate on January 20, when Harris takes office, he will, unless Democrats actually abolish the filibuster on all legislation, be able to stymie President Biden in much the same way that he did, even without a Senate majority, during most of President Obama's tenure in office. (10) One reason that the filibuster, even if somewhat modified, may survive, in addition to West Virginia Senator Joe Manchin's opposition to eliminating it, is that it is not clear that Biden, nostalgic for a Senate that no longer exists, would support such a clearly polarizing decision. Still, even if Jack is somewhat chastened, he does remain the optimist, apparently full of faith that the United States will pull out of its Trumpian tailspin.

I am less optimistic. Within our partnership, which has been central to my intellectual life for at least three decades, I suppose I have become Chicketn Little to his sometimes cockeyed optimist. So my contribution to this symposium, beyond urging everyone to read and grapple with Jack's interesting and fully accessible meditation on the past and current state of American politics, is to cast some doubt on his relative optimism. I was skeptical prior to the election; I am even more so now, whatever my elation that Donald J. Trump is out of office and Mitch McConnell relegated to being only the Minority Leader.

Given Jack's time horizon, he is not really trying to reassure me that things will necessarily get better in my lifetime, as I am completing my eighth decade of life. Rather, his reassurance is that my children and, more certainly, my grandchildren may have reason to look forward to sunnier futures (defined, among other ways, by the return to more-or-less hegemonic power, for at least a while, of the Democratic Party). For obvious reasons, I hope that I am wrong and Jack is right. However, I am not convinced and will not be so even after Joe Biden takes the oath of office. (11) Even if, as now (August, 2021) appears to be the case, he is willing to think boldly and even "transformatively," will he take the lead in suggesting that we need a long-overdue national conversation about constitutional reform if we are serious about curing our "rot"? The answer, I am afraid, is no. Even if Biden is truly audacious in terms of policy proposals, he would still need to confront the extent to which we are all imprisoned in an iron cage, constructed by the Framers of 1787, from which we desperately need to escape.

So let's talk about "rot." What is it? "It is," says Jack, "the decay of the features of a constitutional system that maintain it both as a democracy and as republic." (12) A "democracy" presumably is defined by the degree to which it reflects the actual preferences of the demos, sometimes with reference to the "median voter." (13) When a system in fact systematically honors the preferences of others, who will invariably be only a minority of the overall public, it is not a "democracy." And Jack presents good reason to believe that we are indeed in such a situation. We live far more in an "oligarchy," where money not only talks but screams with delight as the wishes of the donor class are translated into concrete political victories. (14) This is especially notable in Republican administrations, as with the obscenity of the Trump "tax cut," (15) but also, if truth be known, in the more-or-less "neo-liberal" administrations of both Bill Clinton and Barack Obama - where the well-off became even better off, even if there were also some efforts, as with the Earned Income Tax Credit or Obamacare, (16) to pay at least some attention to the plight of those seen by Mitt Romney in 2012 as "the takers" rather than the "makers" who deserved to hoard any economic gains. Of course, there is the reality that the Constitution was designed by people who were profoundly antagonistic to the notion of "democracy"; that would require some genuine faith in the capacity of ordinary people to engage in what Federalist No. 1 described as "reflection and choice" about how we should in fact be governed. (17) Inasmuch as the Framers did whatever they could to assure that we would live within the confines of a significantly "undemocratic Constitution," it is not clear what it means to say that our present situation represents a "decay" rather than, for some at least, the realization of their hopes.

After all, Federalist No. 63, written by Madison, goes out of its way to note with pride that a Constitution ordained in the name of "We the People" in fact deprived the actual public of any direct role whatsoever in their governance. (18) Everything would in fact be done by ostensible "representatives" of the public - some directly elected, as with the House of Representatives (though with a quite truncated electorate, of course), and some indirectly so, as with the original members of the Senate until the passage of the 17th Amendment in 1913, and, notoriously, the President of the United States, selected...