Are We Near a Constitutional Turning Point?





Mr. Magliocca is Associate Professor of Law at Indiana University School of Law and the author of Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Univ. of Kansas Press 2007) .

When Americans think about constitutional law, they almost always focus on the Supreme Court. And with the recent appointments of Chief Justice John Roberts and Justice Samuel Alito, many observers believe that the Court is about to embark on a new conservative era. More powerful forces at work outside of the Court, however, suggest that a different constitutional change may be at hand – the dissolution of the coalition built by Ronald Reagan and its replacement by a new political order.

Constitutional law moves in cycles driven by the unique experiences of each generation. My new book, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes, explores how this cycle unfolded for the Jacksonian Democrats that governed from the 1830s until the Civil War and uses that example to develop a broader understanding of how the Constitution changes.

Though each constitutional period is distinctive, there are some fundamental principles that unite them. Every generation of Americans, not just the Founding Fathers, acts to correct abuses tolerated by the legal traditions they inherit. In framing a solution, each new political movement develops constitutional ideas tailored to the problems that it confronts. Once established, this consensus sets the boundaries of political debate until voters rethink their allegiance in an electoral realignment. Thus, the Justices are largely carrying out the will of the ruling generation when they interpret the Constitution.

The repetition of this cycle throughout our history contains three important lessons about when these movements end. First, whether one is talking about New Deal Democrats, Reconstruction Republicans, or Jeffersonian Democrats, a constitutional generation typically lasts for about thirty years. This rings true because once voters draw conclusions about a particular set of experiences they tend to keep voting the same way until they die. Second, the electorate as a whole usually reconsiders its party identification only when some transformative moment such as the Civil War or the Great Depression exposes deep faults in existing legal arrangements. Third, when the philosophy of the ruling generation starts to get stale, that movement often responds by nominating an outsider for President who campaigns as a pragmatist who can make things work instead of relying on party dogma.

The current constitutional era was launched by Ronald Reagan’s election in 1980, which swept conservatives into power for the first time in decades and turned the Republican Party into the dominant force in the country. That movement developed in response to the failures of the welfare state and the perceived excesses of the Supreme Court in cases on criminal law and social policy. Though it may be hard to remember, the late 1970s was seen as a time of crisis with the West retreating before communism, rampant inflation smothering the economy, and a general sense of malaise afflicting the nation. We are now almost thirty years removed from these events, and the recent death of Jerry Falwell is a reminder that the leaders and voters who developed their political consciousness during this time are beginning to pass from the scene.

Not only is the conservative era nearing the end of its natural lifespan, but the events of September 11 have undermined the message that brought President Reagan and his heirs to office. In his First Inaugural, Reagan famously explained that “[i]n this present crisis, government is not the solution to our problems. Government is the problem.” Responding to the crisis of terrorism, however, is a quintessential government function that is not well served by the robust understanding of federalism that was an integral part of conservative thought for decades. More broadly, 9/11 and the War in Iraq are causing voters to rethink their priorities in a way that could portend an electoral realignment. The negative impact of 9/11 on the Reagan coalition was masked by the rally to the President in the immediate aftermath of the attacks, but its long-term effect may be more adverse to the GOP.

Finally, the shape of the Republican field in the 2008 election reflects the politics of a fading regime. In a brilliant book written during the 1990s, Stephen Skowronek explained that when a constitutional system ages its ruling party cannot nominate true believers for President if they want to win. The better alternative is to run someone who is loosely affiliated with the political establishment and can plausibly claim that he can make a bad system work through extraordinary managerial skill. Herbert Hoover, for example, was a professional engineer who was known for his exceptional crisis management skills before his election as the last Republican President before the New Deal. Likewise, Jimmy Carter began his career as an engineer and argued that the flaw with modern liberalism was in its administration rather than in its approach, which was encapsulated by his campaign slogan “Why Not the Best?” Needless to say, he was the last Democratic President before the Reagan Revolution.

At the moment, the leading Republican presidential candidate is Rudolph Giuliani, who fits this technocratic model perfectly. Mayor Giuliani is not a party warhorse like Bob Dole, George H.W. Bush, or Newt Gingrich. He does not support longstanding party positions on issues such as abortion. Instead his candidacy rests on his reputation as a “can-do” leader who reduced crime in New York and showed strength after 9/11. One of Giuliani’s rivals is Mitt Romney, who is also an outsider emphasizing his business success and his managerial skills in running the Winter Olympics rather than his beliefs. This may represent a winning formula in 2008, but the profiles of candidates like Giuliani and Romney reflect a basic lack of appeal in the traditional conservative message.

Predicting when and how a political realignment will occur is a tricky business that calls to mind the economist who proudly boasts that she predicted nine of the last three recessions. In determining where the Constitution will go in the near future, however, the places to watch are Iowa and New Hampshire, not the Supreme Court.



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Jason Blake Keuter - 6/30/2007

I would agree that the current Republican Party does lack a small government philosophy, but I'm not sure that the current Supreme Court reflects the end of Reagan as much as it does the institutionalization of Reagan. My take on the court would be that it either lunges radically far "ahead" or lags a generation behind. In the case of race based admissions (called affirmative action, but really an arbitrary quota system), the court seems to be finally escaping the malaise of liberal, 1970's guilt. I would even contend that Clinton stood where the Court stands today (how quickly we forget the DLC, Sister Souljah and Clinton's overall strategy of distancing the party from its "urban" identity) but regressed in the face of the Monica scandal and cynically embraced affirmative action and the tired principles underlying it for the sake of shoring up the African-American base.

So today's court seems to be more an expression of Reaganism on social and cultural issues as it is definitely more in step with the actual intent and meaning of the 14th amendment than its immediate predecessors. The Republican Candidates are strangely mute on these kind of questions, but they can afford to be, since the court is generally on their side.


John Charles Crocker - 6/29/2007

Polling data does not support the substance of your opinions so you dismiss it as skewed.
What reasons do you have for those opinions? You must have seen some evidence to cause you to form these opinions, or do you just feel that it is so for no real reason?


Lawrence Brooks Hughes - 6/29/2007

My opinions above were obviously designated as opinions when prefaced with "I would say," and you should not be so naive as to believe all "polling data" that you see, either, since much of it is skewed by sample selection and leading questions.


John Charles Crocker - 6/29/2007

Do you have any evidence at all for your assertions? Where is the polling data to support your assertions of what the great middle or younger people believe?


Lawrence Brooks Hughes - 6/29/2007

I agree, and would also say the great middle has turned very skeptical of governental solutions, which all involve higher taxes but often don't deliver positive results. In some ways this is a legacy of the failed "War on Poverty," and also perhaps, a growing appreciation that the public schools system has failed--along with the CIA, of course, and the immigration bureau, and criminal justice system, etc. And Social Security??? The old FDR Democrats have nearly died off, and many younger people would rather try
"market based" than "politically correct" solutions.


Lawrence Brooks Hughes - 6/29/2007

My predictions above were bourne out today by the court's decision, and by the left's rabid reaction to it. Justice Breyer said in his dissent that the court had reversed Brown v. Board of Education, but his argument doesn't work because many of us can remember the United States prior to Brown, and know full well that any comparison of where we are today with the legal segregation existing before 1954 is a reckless hallucination. Racial preferences have gone on for far too long, but they are now finally ending.


Michael DiMola - 6/26/2007

Magliocca's comments suggesting that "the electorate as a whole usually reconsiders its party identification only when some transformative moment... exposes deep faults in existing legal arrangements" highlights the atypical watershed election. However in analysis of causation, he fails to accentuate the reform nature of any dominant political ideology before a major political party shift. For example, he states that “its ruling party cannot nominate true believers for President if they want to win.” This suggests that the GOP is not necessarily in its decline but in a reformative stance. And this would be a firmer analysis then questioning that a watershed election is in the works.
For example, the election of Carter to the presidency was seen as a typical Democratic Party presidential victory. The northern liberal papers highlighted the triumph of labor and their massive voter turnout, while the South was welcomed back into the fold with moderates and blacks aiding Carter to victory. But Carter’s presidency was marked with stagflation, the loosening of the reigns on domestic oil, and procedural reforms that middle class liberals enacted prior to his presidency which split the Democratic Party along class lines. These transformations allowed a divided party to loose control of its welfare programs and Keynesian approach to the economy. This in turn, allowed a Republican Party to propose alternative solutions to the economy and to the social ills the nation was facing.
Internal discord among the dominant party members and alternative solutions to existing problems would be in line with Magliocca's assessment. However, where I would disagree with him is his critique of Republican influence. The transformation to a Republican dominance was largely supported by working class Americans who failed to reap the benefits of Carter’s tax cuts. They also supported the loosening of restrictions on domestic oil to counter the shortage, and the idea of trickle down economics was seen as a way to restore productivity to a beleaguered domestic economy. In turn, it was a rejection by the American people of mainstay liberal values.
Taking this to present day discussion, there is no outcry with the presently defeated labor bill. The war in Iraq remains a critical fissure in partisan politics with the majority of presidential candidates divided along party lines however there seems to be no definitive resolution in sight. The approach to stem cell research by Democrats is one of caution. And the debate towards universal healthcare still remains nominal and undefined by the Democratic presidential candidates. Without a stronger rebuttal, it is hard to see the Democrats causing a shift to the left. They can be elected in this current state of turmoil but there is little outcry for national change.


Michael DiMola - 6/26/2007

Magliocca's comments suggesting that "the electorate as a whole usually reconsiders its party identification only when some transformative moment... exposes deep faults in existing legal arrangements" highlights the atypical watershed election. However in analysis of causation, he fails to accentuate the reform nature of any dominant political ideology before a major political party shift. For example, he states that “its ruling party cannot nominate true believers for President if they want to win.” This suggests that the GOP is not necessarily in its decline but in a reformative stance. And this would be a firmer analysis then questioning that a watershed election is in the works.
For example, the election of Carter to the presidency was seen as a typical Democratic Party presidential victory. The northern liberal papers highlighted the triumph of labor and their massive voter turnout, while the South was welcomed back into the fold with moderates and blacks aiding Carter to victory. But Carter’s presidency was marked with stagflation, the loosening of the reigns on domestic oil, and procedural reforms that middle class liberals enacted prior to his presidency which split the Democratic Party along class lines. These transformations allowed a divided party to loose control of its welfare programs and Keynesian approach to the economy. This in turn, allowed a Republican Party to propose alternative solutions to the economy and to the social ills the nation was facing.
Internal discord among the dominant party members and alternative solutions to existing problems would be in line with Magliocca's assessment. However, where I would disagree with him is his critique of Republican influence. The transformation to a Republican dominance was largely supported by working class Americans who failed to reap the benefits of Carter’s tax cuts. They also supported the loosening of restrictions on domestic oil to counter the shortage, and the idea of trickle down economics was seen as a way to restore productivity to a beleaguered domestic economy. In turn, it was a rejection by the American people of mainstay liberal values.
Taking this to present day discussion, there is no outcry with the presently defeated labor bill. The war in Iraq remains a critical fissure in partisan politics with the majority of presidential candidates divided along party lines however there seems to be no definitive resolution in sight. The approach to stem cell research by Democrats is one of caution. And the debate towards universal healthcare still remains nominal and undefined by the Democratic presidential candidates. Without a stronger rebuttal, it is hard to see the Democrats causing a shift to the left. They can be elected in this current state of turmoil but there is little outcry for national change.


William R. Everdell - 6/26/2007

I'm quite sure we are at a constitutional turning point, but not for the reasons Professor Magliocca offers; and I would not look for anything new today in the presidential campaign or the Supreme Court's votes. Instead, I think, we face the culmination of a move toward presidential dictatorship and congressional irresponsibility which began perhaps as early as 1936, but which has reached its climax in 2006, after a 2nd act buildup that went from Watergate through Iran-Contra to the Second Iraq War and the creation of the doctrine of the "unitary executive." I see no way to trust any current candidate, male or female, with an office that presumes it may make or break the law for reasons of "national security," like some resurrected Charles I.


Oscar Chamberlain - 6/25/2007

David

I think you are right. Barring extremely unexpected events, this court is going to have considerable power for some time. At the margins of its philosophy, politics can shape it, but at the core, it will remain deeply conservative, particularly in regard to cultural matters.

The one possible exception to that may be in free speech (for adults only), where Scalia at least has flashes of libertarian tendencies.


david little - 6/25/2007

Mr. Magliocca is right that we are near a constituional turning point, but I would suggest that he should account for the lag time between the political change of direction and the direction of the courts. It has taken over 20 years of the "Republican cycle" to modify the direction of the Supreme Court in any significant way, and it will take at least that long for the Democrats to do the same, and that is assuming that the Democrats come up with a defining philosophy with which to lead and get re-elected with.


Lawrence Brooks Hughes - 6/25/2007

I think it's true the Supreme Court watches the election returns. I think we will see some evidence of this shortly when SCOTUS announces decisions on two more cases involving affirmative action and schools. Last November the voters of Michigan reversed Sandra Day O'Connor's law respecting racial preferences at the University of Michigan by a margin of two to one, despite the pro affirmative action forces having spent vastly more money in the election campaign and having enlisted both parties, all state newspapers, etc., on their side in the fight. The Supreme Court will doubtless rule with the voters of Michigan, reversing its earlier positions on affirmative action, since the public has overwhelmingly repudiated their previous decision. This will be read by the liberal media as a consequence of two new justices being appointed by George W. Bush, but I think it was inevitable regardless who was president and who was appointed. The public is just fed up with racial preferences in government contracting and school admissions, and Mrs. O'Connor's notions about giving it another 25 years could not be ratified.

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