Balkin’s The Recent Unpleasantness: Understanding the Cycles of Constitutional Time

From Jack M. Balkin’s The Recent Unpleasantness: Understanding the Cycles of Constitutional Time, Indiana Law Journal, (2018 Forthcoming):

This article, originally given as the 2017 Addison C. Harris Lecture at Indiana University, analyzes recent events in terms of three great cycles of change in American constitutional history. The first is the cycle of the rise and fall of political regimes. The second is the cycle of polarization and depolarization. The third is the cycle of the decay and renewal of republican government–the cycle of constitutional rot. Each of these cycles operates on a different time scale. Their interaction generates “constitutional time.”

Many commentators worry that the United States is in a period of constitutional crisis, or that American democracy is doomed. These fears, although understandable, are overstated. America is not in a constitutional crisis, although it is suffering from a fairly severe case of constitutional rot, connected to rising polarization and economic inequality. Our current difficulties are a temporary condition. They stem from the fact that the Reagan regime that has structured American politics since the 1980s is dying, but a new regime has yet to be born.

This is a difficult, agonizing, and humbling transition; and its difficulty is enhanced by the fact that, unlike the last transition, it occurs at the peak of a cycle of polarization and at the low point of a cycle of constitutional rot. For that reason, the transition to a new political regime is likely to be especially difficult. But we will get through it. And when we get through it, about five to ten years from now, American politics will look quite different.

Political renewal is hardly foreordained: it will require persistence and political effort. The point of this lecture is to offer a bit of hope in difficult times. If people misunderstand our situation, and conclude that American decline is inevitable, they may unwittingly help to make that fate a reality; but if they understand the cycles of constitutional time, they may come to believe that their democracy can be redeemed, and do their part to realize that worthy goal.

Interesting. — Joe

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