America's New Gilded Age: The Cycles of Constitutional Time

You can listen to an expanded companion audio version of this essay - including an exclusive discussion of the role of the media - using the player below or on Apple Podcasts, Google Podcasts, Stitcher or Audible.



In The Cycles of Constitutional Time, Jack Balkin takes an overarching look at the dynamics of constitutional government over the history of the United States. To understand what is happening today, he argues, “we have to think in terms of political cycles that interact with each other and create remarkable — and dark — times.” Single-term presidents, Balkin notes, often coincide with the ends of these cycles, moments where an existing approach to political life has run its course. Since Reagan’s ascendency in 1980, Balkin contends, the dominating approach has been characterized by a lack of trust in politicians and big government. But, he suggests, the single-term presidency of Donald Trump could be another iteration in the pattern, and we may be moving toward a more progressive era. Balkin is the founder and director of Yale's Information Society Project, an interdisciplinary center that studies law and new information technologies. He recently spoke with Governing Editor-at-Large Clay Jenkinson.
This interview has been edited for length and clarity.


Governing: In The Cycles of Constitutional Time, you argue that we have broad cycles in American history, and that presidents at the end of a cycle can sometimes become imperfect final voices, opening the door to something else. Is that an accurate reading?

Jack Balkin: That's right. You can see this with Jimmy Carter. He understands there's something wrong. He has this famous speech about malaise. Diagnostically, he's pretty good. He's just not able to operationalize it in terms of something that can keep his party going. Trump is similar. He's very good at reading a room. He read the United States around 2016. He saw there was something wrong, but he didn't turn it to anything of public value.

LIVING IN THE NEW GILDED AGE

I think we're in the second Gilded Age. The first Gilded Age was a period of gridlock. Nobody thought government could do anything, which led them to distrust it even more. It was a deeply corrupt time. And we've been living now, for at least a decade, through a period of protracted gridlock. You can’t get anything done unless you win all the branches of government by a substantial margin and you're able to get past the filibuster rules. That causes people to despair and become cynical about politics.

One problem we face is that the old order, represented now by the Republican party, realizes that it can cling to power with 47 percent or 48 percent of the vote nationally. Since 1988 it’s had real trouble garnering national majorities, but it stays in power by tricks and games. It’s what you might call minoritarian government, as opposed to majoritarian government. There are different ways to accomplish this. You constrict the franchise. You appoint friends to the bench who will help you constrict the franchise. You make it difficult for politics to work. You convince the people that both parties are the same. That’s the recent strategy to stay in power.

OPENING UP OUR SYSTEMS OF SELF-GOVERNMENT

If you're going to have reform and renewal, it's necessary to open up democracy so it can actually do things. You have to dismantle that system of minoritarian government. The key that opens the door is the control of the Senate. Opening the door doesn't in itself achieve much, but that’s the moment whether or not there will be reform of the Senate. It doesn't have to be getting rid of the filibuster completely. You can get rid of the filibuster for selective things, but first you have to change the rules, and then you do some other things. You have to change the voting system, which is corrupt. You have to have new states because the Senate has gotten especially malapportioned in the last couple of decades, the result being that you can have a majority control, or filibuster control, even if the people represented are an increasingly small percentage of the public. What you get is a failure of what the founders called republican government, government by majority. That's what we have now. We have minoritarian government.

Governing: Is ending the filibuster crucial for the Democrats to achieve enough in the next 18 months to keep the House and control the Senate in 2022?

Jack Balkin: It is in the interest of the Democratic party to get rid of the filibuster and create the conditions that would allow them to survive electorally for the next several election cycles. It’s in the interest of the Republican party, in order to maintain minoritarian government, to resist these reforms and to keep the filibuster in place. The interests are lined up. Nothing’s happened yet because there are macro interests and micro interests. Particular politicians facing particular political problems have micro interests that conflict with the macro interests of the party as a whole. That's the problem we're in right now.

AT THE INTERSECTION OF CONSTITUTIONAL CRISIS AND CONSTITUTIONAL ROT

This particular moment offers two strategies. One is a renewed possibility in the ability of government to make people's lives better, and the other is changing the basic rules of politics, making government more small "r" republican and more small "d" democratic. That's why this is a crucial moment.
Governing: You say in the book that a constitutional crisis is not the same as constitutional rot. Looking now in the rearview mirror, which did we experience between Nov. 3, 2000, and Jan. 21, 2021?

Jack Balkin: Both. Our system has become ever more nonrepublican and nondemocratic, but there was also a crisis. A constitutional crisis is when the constitution fails to keep struggles over politics within the bounds of the constitution. When you have an insurrection against the seat of government trying to stop the counting of electoral votes, that's a constitutional crisis. And that insurrection failed. The more interesting question is whether or not we're going to see more attacks, more violence. If that happens more than once, then I’d say this crisis is not over yet. But I think the deeper issue is rot. There's rot everywhere in the system. There's rot in the representational system, there's rot in the way the politicians behave toward each other. There's rot in politicians abdicating their responsibilities. There's rot in the campaign finance system. And there are rotten institutions of leadership all the way up and down the line.

AN AMERICAN WHOSE MIND WAS CHANGED AGAINST HER WILL IS OF THE SAME OPINION STILL

Governing: Some significant percentage of Americans continue to believe that the election was stolen in the face of overwhelming evidence that it wasn't. What is this telling us?

Jack Balkin: Our system of communication, which is necessary to a democracy, has outgrown the way in which it should ordinarily function. The media is not trusted. The democratization of media has not been accompanied by the development of new, trustworthy institutions that can provide some kind of counterweight. Media have been opened up to more people than before, but the key question is whether you have other institutions that are responsible for weighing and deciding what's true and what's false and disseminating it to the public.

This rapid growth of democratization of speech is all to the good, but it has come at the decay and undermining of knowledge producing and disseminating institutions. There’s an increasing distrust on the part of vast numbers of Americans in those institutions. They don't trust the media, they don't trust universities, they don't trust scientists. It’s a breeding ground for conspiracy theories and the spread of false information. When you add a demagogue like Trump, taking advantage of this weakened system, the result is chaos.

Governing: What's the hold that this highly imperfect demagogue has over a base which has long been the self-proclaimed moral voice in American life?

FEAR AND LOATHING IN THE HEARTLAND AND BEYOND

Jack Balkin: It shows that these things were not the central question. The central question was a sense of loss of status, of who was more important and who was less important, of whose view counted more and whose view counted less. One of the great political strategic moves of the period from Reagan's election to the present has been the dismantling of the old New Deal coalition and the creation of a new coalition. This was done by shifting the basic fault lines of politics from questions of economics and economic equity to questions of identity and status.

We can make all sorts of deals if the issue is simply about economics. But if the issue is identity and status, it's zero sum. If I lose a little, you gain something. If you gain something, I lose. It's much harder to compromise on these questions. This was the way the Republican party created itself as the party that set the tone and the agendas of politics. They shifted the basic ground of politics from economics to status. That was a successful form of politics, but it also created dangers that have been born out in the last 20 years. Trump’s politics are all the politics of status and identity.

Governing: Can the republic die?

Jack Balkin: Every republic dies. That’s what the framers believed. We're in a very difficult time. I think we'll get out of it because Americans are ingenious and inventive and very creative. This is a characteristic feature of our political character, of our national character. I think we will get out of it, but boy, we cut it close this time. There were guardrails that held when others gave away. First, it turned out that federalism was a crucially important guardrail. Not the kind of federalism that I talk about with my students. Just the brute fact that there are multiple constituencies in the United States, and that you can build a class of new politicians who can resist whatever's going on in Washington and who can make reputations for themselves by being the alternative.

The second thing is the remaining elements of public spiritedness in officials of both parties. This was not thoroughly undone and corrupted, even when it was in the interest of the Georgia state electoral officials to swing the election for Trump. They would not do it. Those guardrails held, but you can imagine how it might look the next time.

HOPE IN THE REMNANTS OF PUBLIC SPIRITEDNESS

Another thing is in our design. We have a presidential system, not a parliamentary system, and that has all sorts of interesting effects. We also have a staggered system of elections. The president serves for a different amount of time than senators. Senate seats are staggered over three election cycles. The House, the Supreme Court, they’re all different. This means it's very difficult for one force to get control of everything at once. It happens rarely, and it means that when you elect a demagogue who's willing to lie and cheat, it's very difficult for him to get his arms around every single part of the system.

Governing: Do you see Joe Biden as having enough charisma to bring about progressive change?

Jack Balkin: I would say two things. He is good at what he does, but he by himself will not be sufficient to get over the goal line. He's very good at re-establishing a sense of normalcy. He’s not going to act like a schoolyard bully. He’s going to hire lots of good people, and he’s going to let them do their jobs. He’s very good at creating a sense of stability. He has empathy for people. He feels the tough times that they are going through. We need that during this period.

He can't solve all the problems. He'll need support from folks in Congress. He's not going to make the call on the filibuster. That call is going to be made by folks in the Senate. And he's not going to make a call in many of the details of the legislation that'll be passed. That'll have to be done by the Senate. This is a situation in which you're going to need cooperation between the Senate and House and the President for things to go forward. Presidents can do some things. They can't do everything. These problems were a long time coming and they’ll take a long time to remedy. But the ground is changing underneath us right now. That’s the last paragraph of my book. You have to have some patience and hope.

You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour, and the new Governing podcast, The Future In Context.

Clay’s next book, The Language of Cottonwoods: Essays on the Future of North Dakota, is available through Amazon, Barnes and Noble and your local independent book seller.