Boston University School of Law
This Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a President. This dynamic frustrates accountability and exacerbates the possibility of unearned transformation. Second, institutional imbalance over the ability to generate legal change can take the form of ad hoc bureaucratic work-arounds. Third, modern Presidents are increasingly tempted to rely on social movements to gain and retain power. These developments augment a President’s ability to influence the pace or degree of legal change, but each also carries significant pitfalls.
Robert L. Tsai,
The Place of the Presidency in Historical Time
Boston University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1333