Richard Albert (University of Texas at Austin – School of Law; Yale University – Law School; University of Toronto – Faculty of Law; Universidad Externado de Colombia – Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah – Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University) has posted A Theory of American Constitutional Time (101 Boston University Law Review (Forthcoming)) on SSRN. Here is the abstract:
Jack Balkin’s new book on The Cyles of Constitutional Time teaches us that there are three cycles of change in American politics: the cycle of the rise and fall of regimes; the cycle of polarization and depolarization; and the cycle of constitutional rot and renewal. Although Balkin gestures toward the possible application of his theory to the world abroad, his theory of constitutional time must be understood as a theory of distinctly American constitutional time. The phenomena of timecycles he identifies in his groundbreaking book are visible elsewhere in the world but they interact differently in the United States. In this Article, I locate the root cause of these differences in three idiosyncratic features of the United States Constitution: its endurance, its amorality, and its veneration. I explain that the much shorter lifespan of constitutions abroad makes it much harder for them to experience the same frequency of cyclical rotations we see in the United States. I show also that the Constitution’s amorality has profound implications on the cycle of constitutional rot and renewal in the United States. A similar cycle exists in constitutions abroad, though not because of their amoral foundations but rather despite their moral foundations. And finally I suggest that the Constitution’s popular veneration is the unspoken predicate for the theory of American constitutional time. As the Constitution endures and grows in public salience, stature, and significance, its increasing veneration catalyzes the three cycles of American constitution time. I close by exploring whether the endurance, amorality, and veneration of the United States Constitution may ultimately distort the nature of constitutional time in the world.
Recommended.