Breaking the Cycle: Rot and Recrudescence in American Constitutional History

Abstract

This essay for a symposium on Jack Balkin’s The Cycles of Constitutional Time draws on Balkin’s framework to evaluate the prospect of constitutional renewal through judicial review. It begins by questioning Balkin’s conclusion that historical change operates cyclically. It then takes up his assumption that courts have served as a source of constitutional renewal during some periods, including the mid-twentieth century. It argues that the Carolene Products regime that Balkin describes should be understood not as a solution to economic inequality and republican rot in a period of declining political polarization, but rather as a precipitating cause. Indeed, the New Deal settlement may have staved off durable change and thereby produced the seemingly cyclical pattern Balkin observes.