Jack Balkin has posted this draft on SSRN (Boston U. Law Review). Here is the abstract:
Today, America’s political system seems remarkably dysfunctional. Many people believe that our 225-year-old Constitution is the problem. But what looks like constitutional dysfunction is actually constitutional transition, a slow and often frustrating movement from an older constitutional regime to a new one.
Americans last experienced this sense of dysfunction during the late 1970s and early 1980s – -the “last days of disco.” The New Deal/Civil Rights regime had gradually fallen apart and was replaced by a new constitutional order – the conservative regime in which we have been living for the past three decades. By 1984, few people argued that the country was ungovernable, even if they didn’t like President Reagan’s policies.
In the same way, our current dysfunction marks the end of the existing constitutional regime and the beginning of a new one. This new regime may be dominated by the ascendant Democratic coalition of young people, minorities, women, city dwellers and professionals that elected Barack Obama in 2008 and 2012. Or insurgent populists associated with the Tea Party may revive the decaying Republican coalition and give it a second wind. As of yet, neither side has been able to achieve a successful transition, leading to the current sense of frustration.
Nevertheless, the transition to a new constitutional regime will be far more difficult than those effected in 1932 and 1980. First, the growth of the modern state and changes in the role of the presidency mean that even the most politically adept and fortunate presidents face greater obstacles to implementing transformative change than they once did; they are less able than past reconstructive leaders to disrupt existing institutions and clear the ground for a new politics. This, by itself, does not prevent the emergence of a new constitutional regime. But second, and perhaps more important, the current transition will be especially difficult because we are near the peak of a long cycle of increasing polarization between the nation’s two major political parties. That polarization greatly raises the stakes of a transition to a new constitutional regime. The defenders of the old order have every incentive to resist the emergence of a new regime until the bitter end.
A long and frustrating transition will have important side effects. First, a dysfunctional Congress tempts the Executive to act unilaterally, by asserting inherent executive authority or by creatively interpreting previous Congressional authorizations. Future presidents may use these new sources of power even when the period of dysfunction has passed.
Second, a period of sustained political dysfunction also tends to empower the judiciary vis-à-vis Congress. Courts will feel freer to assert themselves and will show Congress less deference. Moreover, judges appointed by the older dominant party, late in the regime, are less likely to engage in judicial restraint and more likely to push the jurisprudential envelope. This helps explain some of the Roberts Court’s recent work. Assisted by conservatives in the lower courts, and by energetic litigation campaigns by conservative civil society groups, the Roberts Court appears to be solidifying and extending the old regime’s ideological and constitutional commitments while it still can.
Our current political dysfunction will end, and a new constitutional regime will emerge. Yet injuries to our politics caused by years of political difficulty will remain. The coming constitutional order will offer new possibilities for political reform, but it will also bear the scars of previous struggles.