With the GOP victory in Massachusetts now beyond doubt, let’s try to figure out where we are. In my work on the “generational cycle” in constitutional law, we see the following pattern:
1. The exhaustion and collapse of the ruling party regime. (Fratricidal Federalists, John Quincy Adams, fracture of the Democracy in 1860, Grover Cleveland, Herbert Hoover, Jimmy Carter, George W. Bush).
2. A realigning election (1800, 1828, 1860, 1896, 1932, 1964, 1980, 2008).
3. A signature statutory initiative from the new political movement (Repeal of the Judiciary Act of 1801, the Indian Removal Act of 1830, the National Industrial Recovery Act, the 1981 Reagan Tax Cuts).
4. Intense resistance to that initiative.
5. An escalation of reform efforts to overcome that resistance.
Not every generation unfolds in this order. During the Populist period, for instance, the critical election came after a great deal of preliminary jousting. Ditto for the Republicans in the 1850s.
We are now approaching stage #5. In other words, the President will have to decide whether he wants to scale back the health care bill — his signature proposal — in the face of these setbacks, or play hardball.
History suggests that hardball is coming. And this probably means an expansive use of the reconciliation rules in the Senate to avoid a filibuster. Previous constitutional generations, who always end up in this jam sooner or later, suddenly become more creative in their reading of legislative or executive precedent.