The Cycles of Constitutional Time

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He is the founder and director of Yale's Information Society Project, an interdisciplinary center that studies law and new information technologies. He also directs the Abrams Institute for Freedom of Expression, and the Knight Law and Media Program at Yale. Balkin is a member of the American Academy of Arts and Sciences and is the founder and editor of the group blog Balkinization. He is the author of over one hundred thirty articles and the author or editor of fourteen books, including Democracy and Dysfunction (University of Chicago Press, with Sanford Levinson), Living Originalism (Harvard, Belknap Press), and Constitutional Redemption (Harvard).

Balkin has been an important participant in each of the internal left -- liberal debates in the legal academy since the 1980s and developed a theory of liberal originalism -- living originalism -- in the George W. Bush era.

• Part OneUnderstanding the Cycles of Constitutional TimeChapter One: The Recent UnpleasantnessA. Thinking in Terms of CyclesB. The Framework of the Argument Chapter Two: The Cycle of RegimesA. Where Are We in Political Time?B. The Waning of Poltical TimeC. Trump as the Great Reviver? Chapter Three: The Cycle of PolarizationA. The Long Cycle of PolarizationB. Polarization in the Reagan RegimeC. Is Polarization Permanent? Chapter Four: Constitutional Crisis Chapter Five: The Cycle of Constitutional Rot and RenewalA. Republican InsuranceB. The Four Horsemen of Constitutional RotC. The Political Economy of Republican GovernmentD. Constitutional Rot Produces DemagoguesE. A Demagogue for Our TimesF. The Acceleration of Constitutional RotG. The Bad News--and the Good News Part TwoThe Cycles of Judicial ReviewChapter Six: Judicial Review in the Cycles of Constitutional TimeA. Judicial timeB. The political supports for judicial reviewC. Partisan entrenchment: judicial review and the party system Chapter Seven: How the Rise and Fall of Regimes affects Judicial ReviewA. Three questions about judicial reviewB. Judicial review in the life-cycle of a political regimeC. The causes of changeD. Judicial review on the cusp of a new regime Chapter Eight: The Role of Constitutional Theory in the Cycle of RegimesA. The cycle of regimes and living constitutionalismB. The cycle of regimes and originalismC. The return of liberal skepticism about judicial reviewD. Looking ahead Chapter Nine: How Cycles of Polarization and Depolarization Shape the Exercise of Judicial ReviewA. The judiciary in a depolarized worldB. The changing audience for judgesC. The end of elite consensusD. The breakdown of the Carolene Products modelE. The collapse of the distinction between high and low politics F. Disciplining "outliers" makes less senseG. The federal judiciary as policy vanguardH. The stakes of judicial appointments in a polarized world Chapter Ten: Law in the Time of Constitutional RotA. Courts and party politics in an age of constitutional rotB. Polarization limits judges' abilities to recognize and halt constitutional rotC. Judicial decisions can exacerbate constitutional rot by increasing economic inequalityD. Rot increases as courts become the policy vanguardE. Rot generates constitutional hardball, which further undermines trust in the courtsF. Courts cannot protect democracy because they do not agree about what it isG. Constitutional rot generates a "reverse-Carolene Products" effect Chapter Eleven: Judicial Politics and Judicial ReformA. Judicial politics in the next regimeB. Reforming the Supreme Court Part Three:Conclusion Chapter Twelve: The Turn of the CyclesA. How Polarization Leads to DisjunctionB. A New Regime without a Social Movement PartyC. The New Party ConfigurationD. The Limits of a Cosmopolitan PartyE. How Constitutional Rot Ends AcknowledgmentsIndex