Some Linear Thoughts on a Cyclical Vision.

• Author: Bowman, Frank O.
• 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 483 I. INTRODUCTION 484 II. HISTORICAL TIME 485 III. CONSTITUTIONAL ROT AND THE SECESSION CRISIS OF 1860 488 IV. CYCLICITY, BOUNDARY CONDITIONS, AND THE FAILURE OF THE ENLIGHTENMENT CONSENSUS 496 I. INTRODUCTION

I am honored to have been included in this Symposium on Jack Balkin's new book, The Cycles of Constitutional Time. (1) Professor Balkin is a giant in the legal academy and a public intellectual of the first rank. Here, as elsewhere, (2) he has written a book that combines careful study of American history and constitutionalism with lucid, propulsive prose. The other contributors to this Symposium are themselves a Who's Who in constitutional law, history, and political science. I am not sure I quite belong in this exalted company. Even though I have written about some specialized - if sometimes topical - corners of the American Constitution, (3) I am not a constitutional theorist in the large sense. I am also not a trained historian. Such historical writing as I have done is mostly small-bore inquiries into things like the import of homicide prosecutions in Boone County, Missouri, in the Civil War era, (4) or might be disparaged by real certificated historians as what Alfred Kelly labeled "law office history." (5) Nor am I a political scientist, despite having the bachelor's degree in that topic that so often presages a descent into law school. I am just an old criminal lawyer who now teaches and writes about whatever interests him. Hence, I am not really qualified to critique constitutional theory of the sweep presented in Professor Balkin's book. Nonetheless, reading it has not only informed me, but stimulated a few questions, which I explore in this Article.

There is a great deal to admire about the substance of this book, particularly its analysis of the difficult constitutional moment in which we now find ourselves, as well as its interweaving of large themes into a hopeful vision of our constitutional resilience. Still, I confess to remaining unconvinced of the central proposition encapsulated in the book's title - that history, particularly American constitutional history, moves in identifiable cycles. I am particularly doubtful that such cycles, if they exist, are those described by Professor Balkin. A full exegesis of my concerns on this score would run as long as the book itself, so I will raise only three, and those only in outline.

2. HISTORICAL TIME

   Time, certainly as humans experience it, is linear. For us, its arrows run one direction only. I realize that the folks in the Physics Department will probably insist that in some weird corners of the relativistic universe time can stop, (6) or perhaps even run backwards. (7) But that is not true in the humanly observable sections we inhabit.

   There certainly are cyclical phenomena. But cyclicity presumes entities moving or interacting in a system that has laws governing the interactions of all its components during a period with more or less constant conditions. Day turns to night, and reliably back to day. Fall progresses to winter and then to spring, then to summer, then back to fall. Leaves turn brown and drop, snow comes, snow melts, leaves return. All this happens, and is observable to us, because the rules of physics govern, quite intractably, the actions of large masses like the sun and the earth interacting in a vacuum, and because the rules of biology - the physics of life - respond to those recurring phenomena in verifiable and predictable ways.

   Perhaps, in the mind of God, human behavior in the mass is subject to its own set of rules decreeing cyclicity or perhaps oscillation between various states of temporary equilibrium. But I doubt that. My own observations suggest that history - constitutional and otherwise - is both linear and pretty contingent. Even radically contingent.

   If some jittery North Carolinian Confederates hadn't shot Stonewall Jackson at Chancellorsville in 1863, (8) then maybe he and not that old slowpoke James Longstreet would have been commanding the Confederate right two months later at Gettysburg. (9) In which case, Joshua Lawrence Chamberlain's 20th Maine maybe doesn't have time to get into position at the end of the Union line on Little Round Top. (10) And Lee's men pour over the hill and behind the Union Army. Meade flees back to Washington. (11) A discouraged North forces Lincoln to sue for peace. And we have two, or maybe three, or even four countries where the United States now sits.

   Nor do I think historical contingency is limited to the dramatic circumstances of war. Suppose that late in 2019, some wayward coronavirus in a Chinese bat or pangolin had not mutated in just the right way to make it transmissible to humans. (12) Or that particular bat or pangolin had not been brought to the Wuhan wet market. In which case we would not have had a global pandemic raging, and being grotesquely mishandled, in an election year by President Donald Trump. (13) Without that wayward Chinese virus particle, one rather suspects Mr. Trump would have won. And the constitutional history of the United States might soon be coming to another kind of end.

   Even if there are discoverable rules or forces bending societies toward cyclicity, I tend to think that the history of the United States is probably a uniquely poor place to discover them. This country, whether conceived geographically or demographically, culturally or economically, or using virtually any other significant metric, has changed so radically and so constantly throughout its entire relatively short life that even treating the United States of 2021 as the same country as the United States of 1788 or the United States of 1860 or 1870 or 1929 or 1945 seems an almost categorical error. In the types, magnitude, and speed of changes we have undergone, we are immediately distinguishable from, say Britain or France, or even China or Japan, all of which have changed over time, of course, but all of which have maintained a far greater degree of geographic, ethnic, and cultural consistency, even as their forms of government have changed quite dramatically. As much as I admire the ambition of Professor Balkin's book, any effort to isolate a small number of factors that have both persisted throughout the life of our uniquely fluid country and remained so powerful that they could bend its history into recurring cycles, like the gravitational mass of the sun entrapping planets in its orbit, seems an improbable undertaking.

   Moreover, Professor Balkin proposes, not one type of historical cycle, but three, each operating "on a different time scale," (14) and thus it would seem more or less independently of one another, but nonetheless interacting from time to time to cause particularly notable effects. (15) His three cycles are the "cycle of the rise and fall of regimes," the "cycle of polarization and depolarization," and the "cycle of constitutional rot and constitutional renewal." (16) This brief Article is not the forum for examining all three cycles and their interplay, so I am going to consider only the cycle of constitutional rot and focus primarily on the first of the three eras of such rot identified by Professor Balkin - the period immediately preceding the Civil War.

3. CONSTITUTIONAL ROT AND THE SECESSION CRISIS OF 1860

   Professor Balkin describes constitutional rot as "the decay of those features of a constitutional system that maintain it as both a democracy and as a republic," (17) in particular, "the process by which a constitutional system becomes less democratic and less republican over time." (18) He adds that this rot "has a second dimension: the gradual destruction of political norms of mutual forbearance and fair political competition that make it possible for people who disagree with each other to jointly pursue the public good." (19) The "third dimension" of constitutional rot, Balkin says, is "loss of the kinds of trust that are necessary for republics to function properly." (20)

   Later, Balkin identifies four "causes" of rot that he colorfully dubs the "Four Horsemen of Constitutional Rot": political polarization, increasing economic inequality, loss of trust, and "policy disasters." (21) Astute readers may already perceive two oddities in this typology. Professor Balkin explicitly identifies loss of trust as both a characteristic of constitutional rot and as one of its causes. (22) Moreover, the "second dimension" of rot -destruction of norms of forbearance and fair political competition that make possible joint pursuit of the public good - sounds an awful lot like "political polarization." Unless there is a sharp distinction between these two ideas that I have not perceived, then polarization, too, is seemingly defined as both a characteristic and a cause of rot. At least these two components of the cycle of constitutional rot assume a sort of Zen koan-like status as both cause and effect, or perhaps causeless causes.

   Be that as it may, in order for there to be a cycle of constitutional rot, there must be multiple instances of it over a period of time. Professor Balkin identifies three: the period of the 1850s during which northern and southern states gradually fell into mutual recrimination and finally civil war; the Gilded Age; and our own period. (23) As an aside, the designation of the Gilded Age as the second of three major cycles of American constitutional rot is a bit peculiar in itself. Professor Balkin's hypothesis of constitutional rot is that rot happens, is followed by a period of democratic and republican renewal leading to a new constitutional equilibrium, which is followed inevitably by decay toward another period of rot. (24) Professor Balkin's first 1850s episode of rot culminated in the explosion of bloodshed of the Civil War, which ran from 1861-1865, and was itself followed by the turbulence of Reconstruction, which did not sputter to its unsatisfactory and ignominious close until...