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A Symposium on Jack M. Balkin's The Cycles of Constitutional Time: How to Do Constitutional Theory While Your House Burns Down
Balkin, Jack M.
Balkin, Jack M.
Abstract
The events of the past five years, culminating in the 2020 election and the January 6, 2021, attack on the U.S. Capitol, pose a new and urgent set of questions for American constitutional theory.
The first is constitutional diagnosis: What has gone wrong with our constitutional system? The second is constitutional repair: What can we do in the short run to repair the damage that has already occurred to our democracy?
The third is constitutional reform: What reforms are necessary, either through constitutional amendment or sub-constitutional means, to strengthen our constitutional democracy for the long run? The fourth is constitutional maintenance: What institutions can we shore up or create to maintain our constitutional democracy as it meets the challenges ahead?
These questions emerged for many different reasons: elite and popular polarization, the unraveling of the New Deal settlement, increasing constitutional dysfunction, democratic backsliding, and accelerating constitutional rot.
The Cycles of Constitutional Time tries to address these questions, using cycles as a heuristic to understand the interaction of political agency and political structure that generates constitutional development over time. Because its analysis ends in early 2020, this Essay discusses developments since the book was written: the old order's attempts to maintain political power through
minority rule, and what it would take for a new constitutional regime to form. It also briefly outlines three possible paths of future constitutional development.
The cycle of rot and renewal in American constitutional history is not an iron law of politics. Rather, it is a sign of the remarkable durability of our constitutional system-that it keeps bouncing back from the forms of democratic decay that have done in many other republics before it.
Yet this durability comes with a price. It makes the system unwieldy and prevents a great deal of potentially valuable change, including the very changes that might be necessary to reverse the growing decay in our institutions. A central question for American constitutional theory is whether our system's resistance to rapid change will finally be its undoing, or whether pent-up
frustrations will produce mobilizations that successfully renew American democracy.