An Enviable Crisis

There are crises and then there are crises.

In his lead essay for this symposium and elsewhere in his influential work, Sandy Levinson has built the case that the United States is headed toward a constitutional crisis, if it is not yet there. The Constitution, he has argued, is the source of many of the problems in self-government in the United States. Pork-barrel spending? The Constitution’s guarantee of equal power in the Senate for all states, giving Wyoming the same number of senators as California, makes it possible. The cliffhanger election of 2000? Blame the antiquated Electoral College. Think we need a constitutional amendment to reverse Roe v. Wade or Citizens United? Article V makes it virtually impossible.

These are real problems with real consequences. But none of them amounts to a crisis, nor even all of them combined.

Something closer to a constitutional crisis occurred in Belgium. For nearly 600 days a few years ago, the country had no elected government, the result of inconclusive elections and the failure of political actors to agree on terms for a governing coalition. 

Even closer to a constitutional crisis is the current standoff in Poland between the newly elected Law & Justice Party and the Constitutional Court, the former seeking to “dismantle” the latter in a struggle for supremacy. This summer’s Greek debt scare is also more appropriately called a crisis, not only for what it meant for Greece but for what it revealed about the current crisis of constitutionalism in the European Union.

Or consider the Constitutions of Nigeria, Eritrea, Myanmar, Sudan, and Russia. These are the top five countries in the constitutional “hall of shame,” a ranking of countries whose constitutions expose the biggest gulf between how strongly the proclaim their respect for rights and how poorly they protect them in reality. This seems to me closer to a constitutional crisis.

Another stronger case for a constitutional crisis is the current state of affairs in Haiti. Ever since the nation won independence from the French imperium, Haiti has had roughly two dozen constitutions in its two-century history. None has lasted for any significant time, and if it has it has been a constitution in name alone. A constitution without constitutionalism, one might say.

By comparison to these and other clearer forms of constitutional crisis, do we really want to describe the current state of affairs in the United States as a crisis?

On nearly every indicator that matters, the United States is thriving.

The most recent Democracy Index, published annually by The Economist, categorizes the United States as a full democracy, with a strong overall score for its electoral process and pluralism, the functioning of government, political participation, political culture, and civil liberties.

The United Nations’ latest Human Development Index ranks the United States eighth in the world in a global ranking of quality of life that tracks life expectancy, educational opportunity and per capita wealth.

And in the newest edition of the Freedom House report on Freedom in the World, the United States once again earns top scores for political rights and civil liberties.

This does not look like a crisis from the outside looking in. Nor does it feel like a crisis from the inside either. It is true that laws are hard to pass and agreement is hard to reach in light of the filibuster power, but the current administration has nonetheless managed to accomplish much of its agenda in relation to finance, health care, the environment, trade, and civil rights. Perhaps things will begin to feel more like a crisis as we enter the period of transition from the current president to the next. But for now, crisis does not seem to capture the present reality in the United States.

The United States has survived a constitutional crisis before. The Civil War was a constitutional crisis, but it was also far beyond just that. It was moral crisis that divided the country in law, politics, and society. But it is much more clearly something we would define as a constitutional crisis than what the United States is living today.

All of this, I think, suggests why Levinson’s lead essay in this symposium is at once useful as a scholarly diagnosis but insufficiently attentive to the world abroad.

It is helpful precisely because it gives us a vocabulary for distinguishing the kinds of problems that threaten to undermine or worse yet to disable the Constitution.

But describing the United States of today as mired in a constitutional crisis risks obscuring the reality that the problems that currently occupy the American political class are ones that many if not most others in the world would happily trade for their own.

Also from this issue

Lead Essay

  • 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

  • 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.

  • 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 slowness of the U.S. Constitution is a feature, not a bug, says Tom Ginsburg. It shields us from politically motivated, short-term thinking in our constitutional design. The alternative, a constitution that is too easy to change, is if anything more likely to provoke crises, as have recently happened in Hungary and Poland. Madisonian constitutional design lowers the stakes of politics, meaning that a president Trump or a president Sanders will be less able to do anything truly damaging. Even in a world of rapidly changing technology, Ginsburg says, we still would have to calibrate the degree of difficulty in constitutional change to match the degree of change needed to suit the situation, and this is likely a hopeless task. Perhaps some constant low-level degree of constitutional tension is the only alternative, and that may not be so bad after all.