The Myth of Eternal Return and the Politics of Judicial Review.

• Author: Moyn, Samuel
• 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 571 I. INTRODUCTION 572 II. CYCLES 573 III. JUDICIAL REVIEW 577 IV. HOPE AND OPTIMISM 580 I. INTRODUCTION

"Some people see in all earthly things only a dreary cyclical movement," Heinrich Heine wrote around 1833. (1) "In contrast to the fatal and indeed fatalistic view," he added, "there is a brighter view, more closely related to the idea of providence." (2) As Heine described it, from this alternative perspective "all earthly things are maturing towards a beautiful state of perfection . . . a higher, godlike condition of the human race, whose moral and political struggles will at last lead to the holiest peace, the purest brotherhood, and the most everlasting happiness." (3)

Constitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law. (4) As such, constitutionalism began its life linked to "dreary cyclical" stories of rise and decline, improvement and decadence, splendor and ruin. (5) In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism of fundamental and ordinary law that owes its sources to Christian theology, making it difficult for any Americans to embrace fully the stories of proud ascendancy and inevitable fall in which the archaic imagination and then ancient Greeks and Romans trafficked so long.

At first glance, Jack Balkin's sparkling new book, The Cycles of Constitutional Time, seems to be about a revival of cyclical thinking familiar to the ancients amid some sort of ongoing commitment to progressive redemption that the moderns brought online. (6) But it turns out that it is defined less by an ancient dreariness than by a cautious optimism. In this reflection on Balkin's argument, I wonder if we need to go further for the sake that optimism, and therefore break more thoroughly with the analytical and moral premises of the ancient framework he adopts.

There is no doubt that Balkin converts his master concept of cycles from the basis for blind guesses and soothsaying prognostications that repetition-minded premoderns indulged into a sense of probable regularities boasting the authority of contemporary political "science." But I nonetheless want to express some restlessness regarding the cyclical modeling and prognosticating goals of Balkin's new book before turning to focus a few skeptical remarks on his account of judicial review.

Oddly, Balkin's story about judicial review has some features that prove the distinctive originality of our moment, but it also treats judicial review itself as in some sense outside the regularities of cycles or the possibility of greater progress alike. (7) I want to put maximum analytical and normative pressure on how hard a constraint Balkin makes the sort of judicial authority America has consecrated, in a moment when more and more Americans are taking a second look at it. Examining what Balkin says, I will reach for the conclusion that optimism requires a rather different account of the past and future of judicial review - and the country itself.

2. CYCLES

   On inspection, The Cycles of Constitutional Time is actually three nearly separate books. (8) One is indeed about cycles, exploring how to generate a story of American constitutional regimes from Stephen Skowronek's influential extrapolation from history of the rise and fall of presidential regimes. (9) And following Skowronek, Balkin presents the main cycle of American constitutional history as having various intermediate points, as an arc that seems to head one direction bends back towards the beginning in a series of stages. (10) The other two books - on polarization and rot - are not about cycles, exactly. (11) If they are, they concern circles collapsed into lines with two endpoints. (12) They are, that is, about oscillations. (13) Polarization waxes and wanes, and rot increases until renovation is necessary, before rot sets in again. (14) In these latter two cases, there is, so far as I can tell, no attempt to build a theory of oscillation between two points into a theory of circular movement on a path with identifiable stages.

   Balkin's investigation of his dynamics is actually three because it is organized as separate inquiries. (15) The book is itself organized as two cycles, first proceeding through each dynamic on its own then repeating the drill to theorize judicial review. (16) (As I will argue below, some crucial relaxation of Balkin's separation of the dynamics occurs, but only in the book's second half.) True, the combination of books is amply justified by the repeated assertion that America right now is in a particular place within each story. But again, as far as I could tell, there is no deeper attempt to correlate the dynamics, (17) to explain whether the three always track one another, or whether to treat the current perfect storm - the brink of a new regime with extraordinary polarization and advanced rot - as explicable or stochastic. The intelligible patterns that Balkin attempts to discern appear within each dynamic rather than among them.

   None of these observations is meant to be critical, only to describe my understanding of Balkin's enterprise, and to prepare the ground for placing it in a particular tradition. Of the book's ambition, there is no doubt. It marshals very different political science literatures in its three parts in order - a literature on regimes supplemented by one on the political foundations of judicial review in the first part, a literature on polarization in the second, and a literature pondering the death of democracy in the third - to apply them to...