Saving Baby Madison

When one of our keenest observers of constitutional law and politics speaks of a constitutional crisis in the United States, we would do well to pay attention. Sandy Levinson defines the concept quite broadly: he sees a crisis not simply as a fundamental dispute about constitutional meaning or action, but rather as occurring whenever constitutional structures are unable to meet the exigencies of the day. In such moments, Levinson sees two unattractive choices: we can either develop (un-)constitutional workarounds that lead to pragmatic accommodation but may violate the fundamental law, or we can simply muddle through with patently inadequate institutions in the face of serious problems. The first approach risks the rule of law, the second saves the law at the expense of society.

Either way, the constitution is at risk. It either dies informally by workaround, as Richard Epstein asserts happened with the New Deal, or it dies formally by replacement, which my co-authors and I have shown occurs quite frequently around the world. Formal replacement of constitutions is costly and risky, and it is no guarantee of solving the problem that Levinson identifies. Because constitutions are mechanisms for identifying what the exigencies of the day actually are, countries that frequently replace constitutions may find that they become more crisis-prone. While one can point to many countries that have a history of constitutional replacement, few of them are stable democracies.

Levinson is clearly motivated by the current state of politics in the United States, and his examples are American. But the problem may even bigger than he thinks: Levinson implies that Madisonian constitutional design is itself a failure. Structurally designed constraints on political action, Levinson asserts, are doomed to lead to the Faustian bargain he describes. Madison’s scheme, setting interest against interest, was designed to slow down government. For Madison and the founders, the risks of tyranny inherent in speedy government action outweighed the risks of government that is too slow. But Levinson thinks the risks of inaction are greater than those from excessive action. This is a general point about constitutional design, with implications well beyond the United States.

It’s a tempting argument, but I am not convinced that the matter is so grave as to throw out baby Madison with the bathwater of present-day American politics. Consider some other countries’ experience with insufficient Madisonian checks. In Hungary, the Fidesz government of Viktor Orban exploited a moment of crisis and won a majority sufficient to amend the constitution, which they proceeded to do wholesale. With the explicit goal of establishing “illiberal democracy” they have attacked many neutral institutions in society. In Poland, elections in October brought into power a conservative majority which has proceeded to fire the constitutional court. The honorary speaker of the parliament stated “it is the will of the people, not the law that matters, and the will of the people always tramples the law.” It is precisely such sentiments that Madison sought to temper.

When one examines the presidential primary field in the United States today, I doubt there are Americans of any persuasion who do not see at least one candidate that they fear. Madisonian design, among other things, reassures us that there is little damage that President Trump or Cruz or Sanders could do, and this lowers the stakes of politics. In each era, the Madisonian vision has been challenged by reformers who want to change things more quickly than the scheme allows. And one must genuinely wonder whether, in an era of rapid technological and social change, we might get the balance wrong. Yet it is not obvious how quickly we ought to allow change to occur.

In many countries, two constitutional design solutions present themselves to Levinson’s Faustian bargain. With regard to Type 1 constitutional crisis, in which institutions give way to action, lower amendment thresholds might be advisable. To be sure, measuring amendment difficulty is a thorny task, and there is some evidence that actual rates of amendment are not responsive to particular amendment rules. Still, flexibility in the face of changing conditions will help a constitutional scheme to adjust to new challenges. And flexibility will help it to endure.

With regard to Type 2 crises, in which inaction prevails, most newly drafted constitutions have explicit emergency schemes that allow a country to deal with short-term crises. France recently declared its first state of emergency since 1961 in response to the horrific massacres in Paris. Carefully designed emergency clauses and explicit limitations clauses for constitutional rights are surely useful design options, which reduce the likelihood of a constitutional crisis as Levinson defines it because the constitution can bend without breaking.

Perhaps the deeper question is whether challenges now arise so frequently and unpredictably that we need to reduce barriers to quick action. If we could do so, we would have to calibrate the difficulty of amendment rule to the nature of the problem we are facing and the importance of the interest at stake. A truly functional and responsive constitutional scheme would recognize that viscosity is a design variable. But while we might wish to rework our constitutional scheme to allow such variable flexibility, any attempt to rewrite our fundamental rules would likely be hijacked by the same demagogues now dominating national discourse. This is a point Cass Sunstein pointed out in response to Levinson’s earlier book Our Undemocratic Constitution. The bottom line is that we may be condemned to constitutional crisis. And that might not be so bad.

Also from This Issue

Lead Essay

  • On “Constitutional Crises” by Sanford Levinson

    Sanford Levinson proposes a typology of the constitutional crisis. Some crises, he argues, stem from political actors disregarding the written constitution. Others, he says, are the product of too much adhesion to the written constitution, even in circumstances in which the written text proves self-destructive. He reviews several incidents of each from American history, and he closes by suggesting, provocatively, that the U.S. Constitution may be undergoing a crisis even today.

Response Essays

  • A Crisis, but Not Just an American One by Jacob T. Levy

    Presidentialist systems are empirically unstable, and parliamentary systems seem superior in this regard, writes Jacob T. Levy. Not only that, but presidentialism encourages the false belief that the president at any given time represents a unified national will. These faults, though, are not indicative of a constitutional crisis particular to United States. All liberal democracies have been experiencing a crisis of confidence in recent years, at least since the end of the post–Cold War euphoria. Confidence in representative institutions has recently been low in general, not just in presidentialist systems. The role of American constitutional design in all of this would appear to be incidental.

  • America’s Unamendable Constitution by Richard Albert

    Richard Albert notes that the U.S. Constitution has become practically unamendable: Congress is simply too divided to agree with the supermajority needed to report out an amendment, and the public appears permanently disinclined to make use of Article V’s provision for an amending convention. As a result, changes to the U.S. constitution have been taking place de facto, but almost never de jure; interpretations today do the work that amendments should probably do, and the potential for constitutional crisis grows. Albert closes with a bold proposal: Perhaps Article V does not provide an exhaustive list of methods by which the Constitution might be amended.

The Conversation