Democratic Culture and Democratic Shocks: The Limits of Constitutional Cycles.

AuthorGienapp, Jonathan
PositionA New Hope? An Interdisciplinary Reflection on the Constitution, Politics, and Polarization in Jack Balkin's "The Cycles of Constitutional Time"

TABLE OF CONTENTS TABLE OF CONTENTS 501 I. INTRODUCTION 502 II. DEMOCRATIC CULTURE 503 III. DEMOCRATIC SHOCKS 512 IV. CONCLUSION: DEMOCRATIC HOPE 515 I. INTRODUCTION

In his new book, The Cycles of Constitutional Time, Jack Balkin achieves something remarkable. (1) He paints an unflinchingly grim portrait of modern American politics that is at once brutally honest about the dire state of our predicament while also somehow brimming with optimism and hope. In that regard, it is Balkinsian to its core - sober and trenchant in its analysis, yet buoyant in its outlook. Not many people could have written a book like this. And we should be grateful that he has. At a time like this, when it feels like the democratic sun is ever more likely to be shrouded in total darkness, (2) we need Balkin's characteristic galloping prose and encouraging spirit to instill the belief that a brighter day lies ahead.

This is not blind hope either. The book's optimism is based on substantive reflection - on a deep and serious examination of the structures of American constitutional time - of how, in the medium- and long-run, our political system has established and sustained its defining regularities. Perhaps, at present, everything appears hopeless and bleak. Yet Balkin makes a strong case that, if only we look beneath the surface and take a longer view of historical development, if only we could focus on what he calls the cycles of constitutional time, we can begin to appreciate the true sources of the "recent unpleasantness," (3) and how those same sources may rescue us from the very troubles they have caused. The astronomical forces of our political universe are to blame - but they also provide the tools for renewal. We do not have to settle for relentless partisan warfare and polarization, demagoguery, racial retrenchment, and a persistent stifling of democratic will, trapped in a "cycle of corruption, cynicism, and despair." (4) We need not continue to suffer in a state of "constitutional rot." (5) The cycles that brought us here are turning. And if we understand them better, we might just allow them to carry us to a new dawn.

This is an ambitious argument, one that weds constitutional with political theory and is rooted in history. While it focuses on constitutionalism, it does not do so as conventional legal scholarship might. Balkin has much to say about the judiciary (all of it illuminating), yet his understanding of constitutionalism is not tethered to jurisprudence. He rightfully appreciates -as he has in so much of his prior work (6) - that the Constitution is far more than a legal code or even a set of institutions, norms, and practices. It is the interaction of all these things - the normative space sustained by the collective activity of using constitutionalism to make politics and the political system work. (7) Accordingly, when Balkin talks about cycles of constitutional time -or constitutionalism more generally - he is talking about nearly everything: democratic politics, institutions, and practices in all their interlocking forms. (8) The book is much better because of this. Balkin is quite right that we cannot understand how we got here without trying to understand how presidential and congressional politics, judicial politics and interpretation, political party structures and governance, and grassroots social activism have interacted. To understand the state of our constitutionalism, we must see the whole picture.

Yet because of this ambition, it is fair to ask if Balkin has identified all of the important pieces and adequately fit them together. More specifically still, has he identified all of the sources of constitutional rot, and, in turn, what is likely to break it? Perhaps if we probe certain aspects of Balkin's portrait, we find cause to be less optimistic than he hopes.

This skepticism will take the form of two distinct, but related, points. The first point is that Balkin has paid insufficient attention to a key variable that has always been a central concern of American constitutional and democratic theorists. This is democratic culture itself - and, by extension, the problem of what defines and sustains a democratic people. If we bring democratic culture into the picture, we might conclude that our rot runs even deeper than Balkin submits. The second point builds from the first. Because our condition of constitutional rot might be deeper than Balkin accepts, it might be harder to escape it. The cycles can only do so much. If history is any guide, the more likely source of change and renewal will come in the form of an external shock to our political system.

  1. DEMOCRATIC CULTURE

    Democratic culture is by no means absent from Balkin's account, but it is fair to say that it is not the focal point. He argues that there are three constitutional cycles: the cycle of political regimes, the cycle of polarization, and the cycle of constitutional rot and renewal. (9) Like gears in a machine, each cycle moves more or less on its own, and it just so happens that, at present, all three have lined up in a particularly disturbing way. (10) We are enduring, he persuasively argues, the decadent final days of a decaying political regime, extreme partisan polarization, and a period of sustained (and worsening) constitutional rot. (11) It is bad enough when any of these cycles enters one of these stages; to suffer through the combination of the three is downright debilitating. This is not only illuminating but deeply compelling.

    My questions begin to arise when Balkin explains why we are in a state of constitutional rot. He identifies "Four Horsemen" of constitutional rot -political polarization, economic inequality, a loss of trust in the political system, and policy disasters (12) - and one would find it difficult to argue with any of those. But, in addition to, and perhaps even more significant than those, are we not in a period of rot because of decay in our democratic culture itself? Is this not an even more fundamental problem, from which the others have sprung and receive essential nourishment? As noted, Balkin alludes to broader democratic culture, especially when he describes the gradual loss of trust in democratic life. As he eloquently puts it, for "republics to function properly," there must be "trust between members of the public, trust between the public and governments officials, and trust among government officials of different parties." (13) Indeed, "the public must not view their fellow citizens as incorrigible and implacable enemies." (14) From there, however, Balkin quickly pivots to democratic political structures and institutions - political parties, checks and balances, the separation of powers, constitutional limits on power, and the formal structure of our constitutional system. He quotes Benjamin Franklin at the Constitutional Convention warning that the American system of constitutional government would only last as long as the American people remained uncorrupted. (15) This warning, however, is only by way of preface to a broader discussion of constitutional structure and the various political and institutional mechanisms that the framers put in place in hopes of combatting inevitable republican rot. (16) Thus, democratic culture tends to be subsumed under an institutional examination of the American regime.

    It would seem important, however, to focus as much on democratic life outside of formal political institutions - on the health of the democratic people who make up our body politic. Here it is helpful to consider how some of the nation's most perceptive democratic thinkers - particularly those who pondered the American political experiment in its earliest years - understood the foundations of representative self-government. At the Founding, commentators stressed time and again that republican political institutions could not stand alone; they could not endure unless Americans behaved like a republican people. (17) There was no surer way the experiment in republican self-government would fail than if "the people themselves" (an oft-used phrase) (18) ceased to behave like republicans. As the United States transformed into a democracy in the ensuing decades (at least for white males), (19) the point remained as pertinent as ever. Democracy, as one commentator after another stressed, needed more than democratic institutions and political procedures -it required democratic habits, sensibilities, and commitments. Alexis de Tocqueville famously argued in Democracy in America - his penetrating portrait of civil society in Jacksonian America - that democracy was a set of mores - a habit of mind. (20) A democratic people were the foundation of democratic governance. The latter essentially depended on the former.

    This was often how the Founding generation talked about the Constitution's prospects. As numerous defenders of the...

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