The Place of the Presidency in Historical Time

17 Pages Posted: 3 Jun 2021

See all articles by Robert L. Tsai

Robert L. Tsai

Boston University School of Law

Date Written: June 1, 2021

Abstract

This essay arises from a symposium based on Jack Balkin’s book, "The Cycles of Constitutional Time," which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with an 18th-century document that is desperately in need of updating. As a result, presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, there are three dynamics worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a president. This exacerbates the possibility of unearned transformation. Second, institutional imbalance over the ability to generate legal change can take the form of ad hoc bureaucratic work-arounds. Third, modern presidents are increasingly tempted to rely on social movements to gain and retain power. These developments augment a president’s ability to influence the pace or degree of legal change, but each also carries significant pitfalls.

Keywords: democracy, democratic backsliding, constitution, social movement, presidency, american political development, institutionalism

Suggested Citation

Tsai, Robert L., The Place of the Presidency in Historical Time (June 1, 2021). Boston University Law Review, Vol. 101, 2021, Available at SSRN: https://ssrn.com/abstract=3857966

Robert L. Tsai (Contact Author)

Boston University School of Law ( email )

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Boston, MA 02215
United States

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