Balkin 2019 The Recent Unpleasantness: Understanding The Cycles of Constitutional Time

2023-08-30: Balkin The Recent Unpleasantness: Understanding The Cycles of Constitutional Time 2019

• "What are the three cycles at work in American politics? The first is the cycle of the rise and fall of political regimes in American history. The second is the cycle of polarization and depolarization. And the third is the decay and renewal of republican government, which I call the cycle of constitutional rot and constitutional renewal. Each of these cycles operates on a different time scale. I will introduce each of them in turn, and explain how they interact. Together, the interaction of these three cycles-of the rise and fall of regimes, of polarization and depolarization, and of rot and renewal-generate constitutionaltime.' " (page 257)
• "First, we are not in a constitutional crisis. Second, we are suffering from a severe case of constitutional rot. Third, we are at (what one can only hope is) peak polarization, and this polarization is connected to constitutional rot. Fourth, and perhaps most important, our recent unpleasantness is only a temporary condition. We are in transition, a very difficult, agonizing, and humbling transition, but a transition nevertheless." (257)
• "The point of a constitution is not to prevent disagreement and dispute; it is to channel disagreement and dispute into peaceful solutions within law and politics. That does not mean that disputes are always resolved correctly or justly. It merely means that disputes are settled within the constitutional system. Avoiding constitutional crisis is not the same thing as securing justice."
• Concurrent extrema in all three cycles: Trump, a disjunctive president, at the end of the Reagan regime (265); Peak or approaching peak in political polization (270); Peak or approaching peak of Constitutional Rot (279)
• "Constitutional rot is the process through which a constitutional system becomes less democratic and less republican over time. When we talk of constitutional rot, therefore, we are interested both in failures of democracy-that is, responsiveness to public opinion and public will-and failures of republicanism--that is, public officials' devotion to the public good." (280)
• "Constitutional 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." (280)
• "A third dimension of constitutional rot involves the gradual loss of the kinds of trust that are necessary for republics to function properly: trust between members of the public, trust between the public and government officials, and trust among government officials of different parties. For republics to succeed, the public must not view their fellow citizens as incorrigible and implacable enemies. They must trust that government officials will usually exercise power in the public interest and not for their own personal benefit or for the benefit of private interests and cronies." (281)
• "Many of the Constitution's structural features--federalism, separation of powers, checks and balances, an independent judiciary, staggered elections for the two Houses of Congress and the President, fixed terms for the executive--may be understood not only in terms of limits on government power, but also in terms of the dangers of constitutional rot. These structural features operate to dampen and limit the downside of inevitable decay in our republican institutions--to keep democracy afloat and republicanism running until the political system has a chance to renew and right itself. The goal is to ensure that although things may get bad at various points in time, the republic never completely falls apart, so that it can bottom out and renew itself eventually. Separation of powers, federalism, an independent judiciary, and staggered election cycles help guarantee that there is always a locus of opposition, a political space in which oppositional groups can safely form, in which pressures for reform can gain strength and are not completely snuffed out or shut out of power. So too, an independent judiciary helps ensure that federal judges aren't simply under the thumb of a charismatic leader." (283)
• "Many factors have contributed to our present case of constitutional rot. They include the gradual breakdown in the party system; changes in how campaigns are financed; and the enormous power of dark money in deciding who gets elected, and in influencing what people do once they obtain office. Another important set of causes concern long-term changes in the structure of mass media, which have encouraged polarization and political distrust, and hastened the merger of politics with entertainment." (284)
• "There are four basic causes of constitutional rot--I call them the Four Horsemen of Constitutional Rot.' The first is political polarization. The second is loss of trust in government and, equally important, in one's fellow citizens. The third is increasing economic inequality. The fourth is "policy disasters"--a term coined by Stephen Griffin; it refers to major failures in policy making by our representatives. Recent examples of policy disasters in American history include the Vietnam War, the Iraq War, and the 2008 global financial crisis." (285)
• "This is not the first time that the American political system has faced similar challenges. To be sure, it is the first time that all of the cycles I have described have lined up in this particular way. But it is not the first time that we have experienced the anxiety of an exhausted political regime and a gradual transition to a new one. It is not the first time we have experienced a cycle of polarization and depolarization. And, above all, it is not the first time that we have been through a cycle of constitutional rot and renewal." (293)
• Does not consider the malapportionment of the Senate. Does not countenance Civil War Amendments adoption due to absence of Slave States (temporary enfranchisement of Negros), Reconstruction, Women's voting, or Warren Court driven electoral reapportionment, Black enfranchisement as a drivers of political change.