How to Do Constitutional Theory While Your House Burns Down

51 Pages Posted: 9 Jun 2021 Last revised: 28 Sep 2021

Date Written: June 1, 2021

Abstract

The events of the past five years, culminating in the 2020 election and the January 6th attack on the U.S. Capitol, have posed 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 unravelling of the New Deal Settlement, increasing constitutional dysfunction, democratic backsliding, and accelerating constitutional rot.

My recent book, The Cycles of Constitutional Time, engages with these new sets of questions, and especially the question of constitutional diagnosis. Its use of cycles is heuristic. It focuses on the rise and fall of constitutional regimes, increasing and decreasing political polarization, and episodes of constitutional rot and renewal in order to understand the interaction of political agency and political structure that generates constitutional development over time.

The analysis in The Cycles of Constitutional Time ends in early 2020. The remainder of 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. The essay 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 it 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 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.

Keywords: Constitutional Rot, Cycles, Constitutional Development, Constitutional Time, Constitutional Reform, Democratic Backsliding, Minority Rule, Republicanism

JEL Classification: K10

Suggested Citation

Balkin, Jack M., How to Do Constitutional Theory While Your House Burns Down (June 1, 2021). Boston University Law Review, (2021, Forthcoming), Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3860214

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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