Race and the Cycles of Constitutional Time.

• Author: Balkin, Jack M.
• Position: A 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 443 I. INTRODUCTION 444 II. THE CYCLE OF REGIMES 445 A. Political Regimes in the Antebellum Era 446 B. The Republican Regime 449 C. The New Deal/Civil Rights Regime 454 D. The Reagan Regime and the Culture Wars 456 III. THE CYCLE OF POLARIZATION AND DEPOLARIZATION 463 A. Racial Polarization in American Politics 468 B. Depolarization and a Second Progressive Era 471 IV. RACE AND CONSTITUTIONAL ROT 475 A. Constitutional Rot 475 B. Race and Constitutional Rot 476 C. Constitutional Rot as a Relative Term 479 V. CONCLUSION 481 I. INTRODUCTION

Guy Charles has pointed out to me that The Cycles of Constitutional Time ["Cycles"] (1) does not say a lot about race. Although statements about race, slavery, and Jim Crow appear at various points in the narrative, (2) race is not an organizing theme of the book. And yet race - and the use of race as a political strategy - is behind many of my claims in Cycles. Charles's suggestion inspired me to write this Article, and to tell the story of the book by making race the organizing principle.

The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. (3) The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. (4) The third cycle is a series of episodes of constitutional rot and constitutional renewal. (5)

Each of these cycles has deep connections to successive political struggles in the United States over race and racial equality. In each regime, the dominant electoral coalition is shaped by the politics of slavery (in the antebellum period) or race (after the Thirteenth Amendment). (6) In several cases, the dominant coalition breaks down because of disputes about slavery or race. The cycle of polarization is highly correlated with attempts by politicians to make race, and more generally, identity, the central questions that divide the two major political parties. Finally, each period of constitutional rot in the country's history has been accompanied by deep polarization that is connected both to increasing income inequality and to party coalitions divided over issues of race.

I do not claim that race is either the sole or the dominant explanation for the cycles of constitutional time in the United States. Nevertheless, as we shall see, race is a powerful factor, and the politics of race are an important driver of the cycles of regimes, polarization, and rot described in the book. My purpose in this Article is to highlight the role that racial politics plays in the transformations described in Cycles, and to show how questions of race are important at each stage of the story.

2. THE CYCLE OF REGIMES

   Because of features of constitutional design, electoral rules, and the development of the party system, American politics has a distinctive shape. (7) It features political regimes, long periods of time in which one party tends to dominate politics. The dominant party does not win all of the elections, but it wins most of them and it sets the agenda for what people think is politically possible at a particular period of time. (8) There have been six of these regimes in American history, each featuring a dominant party. In each cycle a new dominant party rises, forms a winning coalition, dominates political agendas, and then slowly decays and falls apart, often the victim of its own success:

   As we trace the rise and fall of these coalitions, we can see the role that race plays in each of them.

   1. Political Regimes in the Antebellum Era

      The first transition between political regimes occurred in the election of 1800, when Thomas Jefferson's Republicans defeated the Federalist Party of John Adams and Alexander Hamilton. Jefferson (and Aaron Burr) won the Electoral College by only eight votes over John Adams, seventy-three to sixty-five. (11) But Jefferson, his critics said, rode into the White House "on the shoulders of slaves." (12)

      The source of this accusation is the 1787 Constitution's three-fifths clause. (13) Counting slaves as three-fifths of a person increased the share of congressional representation for the slave-holding states, an electoral advantage that slowly decreased over time as the North and West become more populous. (14) Because each state received electoral votes equal to the sum of its senators and representatives, the three-fifths clause gave slave-holding states an advantage not only in Congress but also in electing the president through the Electoral College system. (15) Without this boost in political power, Jefferson probably would have lost the 1800 election. Because the North and West soon began to grow in population, the Jeffersonian takeover of American politics might have been delayed by several election cycles - if it ever occurred at all.

      From the Founding to the Civil War, the three-fifths clause affected who became president. (16) It made a slaveholding state, Virginia, the most powerful state in the Union, with the largest number of electoral votes until 1812, when New York finally surpassed it. (17) With the exception of one term by John Adams, from 1789 to 1824 the Presidency was occupied by four Virginia slaveholders - George Washington, Thomas Jefferson, James Madison, and James Monroe. (18) John Adams's son, John Quincy, occupied the White House for another interregnum of four years. (19) After that, during the Jacksonian regime that began following the 1828 election, the president was either a Southerner or a Northern politician willing to accommodate the South. (20)

      The three-fifths clause also gave the South extra leverage in legislation. For example, until 1850, the South demanded and received parity in the admission of new slaveholding and non-slaveholding states. (21) This gave it numerical equality in the Senate even as the population of non-slaveholding states increased.

      The three-fifths clause also helped ensure that the Supreme Court would be friendly to the interests of slavery. As the country moved westward, the number of judicial circuits expanded. (22) This led Congress to increase the number of Supreme Court Justices. (23) Each Justice of the Supreme Court was supposed to ride circuit - travel around and hear federal cases in the group of states assigned to them. (24) By convention, each Justice was supposed to be an inhabitant of one of the states in the circuit assigned to them. (25) Jacksonian Democrats made sure that a majority of the circuits were composed of slaveholding states. (26) This, in turn, helped ensure that a majority of Justices were from slaveholding states, or were otherwise sympathetic to the interests of slavery. (27)

      The cumulative advantages created by the three-fifths clause allowed Jefferson's Republicans, and later Andrew Jackson's Democrats, to dominate American politics until the Civil War. (28) Because it shaped the nature of representation, the three-fifths clause also shaped the distinctive ideology and interests of the Jeffersonian regime and later, the Jacksonian regime. The representational boost to slaveholders meant that the dominant party from 1800 to the Civil War would seek not only to protect slavery, but also to extend its spread throughout the new territories that the United States acquired through purchase and conquest.

      During the Jacksonian regime that succeeded the Jeffersonian regime, the dominant party was the country's first mass political party: the "party of democracy," or the Democratic Party. (29) The Jacksonian coalition championed the expansion of suffrage to white working men and the rights of ordinary working men against financial elites. (30) But the Jacksonian coalition was hardly egalitarian. It depended on the exclusion of women, Native Americans, and Blacks from governance. (31)

      The Jacksonian regime and its governing coalition were made possible and kept in place by a racially exclusionary politics. (32) That politics, in turn, made the Jacksonian coalition increasingly captive to the interests of slavery - which opponents called the Slave Power. (33) As I discuss later on, (34) the first key episode of constitutional rot, in the 1850s, is due to the fact that the defense and expansion of slavery had become a dominant force in American politics.

   2. The Republican Regime

      The Republican Party, which began in 1854, sought to combat the rot caused by the dominance of the Slave Power in American politics. (35) Thus, race played an important role in the rise of the next political regime, the long Republican regime in which the GOP was the dominant political party from 1860 to 1932. (36) That regime and its governing coalition emerged out of the struggle over the expansion of slavery in the federal territories.

      In its early years, and especially after the ratification of the Fifteenth Amendment in 1870, it seemed as if a central goal of the regime would be to protect and defend the rights of the freedmen, and that this regime would be backed by a multi-racial coalition of whites and Blacks. (37) But as the years wore on, the Republican regime became less concerned about racial equality and more concerned about the defense of business interests.

      Black voting rights became important to the Republican coalition as a result of the Reconstruction Amendments. (38) In 1866, when Congress debated the Fourteenth Amendment, Black suffrage was a radical idea. (39) Instead of guaranteeing African Americans the right to vote, Section 2 of the Fourteenth Amendment fashioned a compromise: states that denied Black men the right to vote would lose a proportionate share of representatives in the House. (40) That provision, it turns out, was never enforced. (41)

      In the meantime, however, Congress took control of Reconstruction from President Andrew Johnson and refused to allow the former Confederate states to reenter the Union...