an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On Feb. 22, 2017, I gave the Dermot S. McGlinchey Lecture at Tulane Law School. The video is below.
My lecture was called "Constitutional Time," and the thesis was that if we want to understand the meaning of the Trump Presidency we have to understand where we are in constitutional time-- that is, in the history of our republic and its Constitution.
In the lecture, I discuss my colleagues Bruce Ackerman's and Steve Skowronek's theories of constitutional time and how they might help us understand Trump's presidency.
I also describe the classical view of the rise and fall of republics, which offers a different view of constitutional time. In particular, I discuss the idea that as republics become corrupted and people lose faith in institutions, they become vulnerable to demagogues. Demagogues undermine and shatter existing political norms. They are often uncouth and uncivil, and use these features of self-presentation to identify themselves with ordinary people. Demagogues denounce elites as corrupt, exacerbate distrust and discord in society, and appeal to people's fear, prejudice, envy and resentments. They promise that they alone can fix things and restore the nation's lost glory. These classical ideas about the decline of republics and the rise of demagogues seem entirely relevant in today's world.
In my view, Trump is not the beginning of a new politics. Rather, he is the last Republican in the Reagan Regime. He will be unable to hold his coalition together and he will preside over the regime's dissolution. This makes him structurally like Jimmy Carter, the last president in the New Deal Civil/Rights Regime, although the two men could not be more different in terms of personality and values.
The politics of disjunction usually involves a party that is at war with itself. Even though the Republicans appear to hold all of the levers of power, they are structurally in a weakened position. Before Trump arrived, they were in the midst of a civil war. Trump's election did not resolve those problems; they merely displaced them. It is important to remember that Jimmy Carter was elected when Democrats controlled both houses of Congress, but his relationships with Congressional democrats quickly soured, and he soon faced opposition within his own party.
I predicted that Trump would be a disjunctive president on Balkinization on November 14th, 2016. Julia Azari made a similar argument in Vox in December 2016, and Corey Robin made a more elaborate comparison with Jimmy Carter's presidency in n+1 in January 2017.
If Azari, Robin, and I are correct that Trump is a disjunctive president who takes power at the end of the Reagan era, we are likely to be in an especially fraught period of constitutional struggle, one that will eventually result in constitutional rebirth in a new regime led by the party in opposition to Trump's Republican Party. Although that opposition party is most likely the Democratic Party, some of its values and commitments may change in the course of the struggle and the transition between regimes.
This last point is quite important. Just as the Democratic Party of Cleveland and Wilson is not the Democratic Party of FDR, and the Republican Party of Eisenhower, and Nixon is not the Republican Party of Reagan, the Democratic Party of the future is unlikely to be the same as the party of Bill Clinton, Barack Obama and Hillary Clinton.
Donald Trump is Shiva the Destroyer. He will ultimately undermine his own party's coalition and he will also alter the coalition of his opponents. A new regime will emerge out of his destructive tendencies; we must hope that it will be beneficial for the country.