Rot and Renewal: The 2020 Election in the Cycles of Constitutional Time

44 Pages Posted: 26 Jan 2021 Last revised: 29 Jan 2021

Date Written: January 23, 2021

Abstract

This essay discusses the 2020 election and its aftermath in terms of the theory of constitutional cycles described in my book The Cycles of Constitutional Time. The book argues that we can understand American constitutional development in terms of three kinds of cycles. The first involves the rise and fall of political regimes featuring dominant political parties. The second is a long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal. Constitutional rot is the process by which a constitutional republic becomes less democratic and less republican over time.

I draw three conclusions from the 2020 election and the Capitol Hill insurrection of January 6th, 2021. First, although the Reagan regime that has structured American politics since the 1980s is nearing its end, we cannot yet be certain that it has reached its conclusion. The COVID-19 pandemic and the economic contraction that accompanied it have handed the Democrats an opportunity to forge a new political regime, but whether they will successfully capitalize on these possibilities is yet to be determined. The book points out, for example that the Democrats missed an opportunity to begin a new regime in 1896, and proved unable to do so in 2008. Years later, we may retroactively identify the end of the Reagan regime with the 2020 election and the Capitol Hill insurrection that followed it. But we cannot say for sure at present.

Second, our deeply polarized politics, which is currently organized around issues of identity and status conflict, will continue until party coalitions slowly begin to change, leading the parties to face off over a new set of issues. Those changes are already in motion, but the transformations will take time.

Third, the gravest threat we face today is not political polarization but constitutional rot — a deepening decay in our political and legal institutions. This decay began well before the election of President Donald Trump. But Trump accelerated constitutional rot in the United States, by his creation of a cult of personality, by his abuses of power, and by his refusal to accept the legitimacy of the 2020 election and the opposition party’s ascension to power through democratic means.

Keywords: 2020 Election, Cycles, Constitution, Regime, Political Parties, Polarization, Constitutional Rot

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Rot and Renewal: The 2020 Election in the Cycles of Constitutional Time (January 23, 2021). Northeastern University Law Review, 2021, Available at SSRN: https://ssrn.com/abstract=3771453 or http://dx.doi.org/10.2139/ssrn.3771453

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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