Fighting the Crisis We Survived

In his original essay, Sanford Levinson suggested that “a constitutional crisis requires an important gap between the demands of a particular situation or time and the impermeable structures of the political system.” “Demands” here is somewhat ambiguous as between the objective demands of circumstances and events, and the subjective wishes of the electorate. I think his considered position is that both might be involved; elsewhere he discusses the problem of a president “staying in office after what one might stipulate to be justified disillusionment sets in.” “Disillusionment” here is the electorate’s mood, but “justified” is a claim about reasonableness or truth.

One example he mentions in this context is the long lame-duck period of the George W. Bush administration. I suspect that it weighs heavily on his intellectual imagination and motivates a great deal of the argument. It’s an example worth taking seriously, though it’s also an odd one in some ways. I view that administration as having been catastrophic – one of the worst in American history – but it does not seem to me that the crucial years of the catastrophe ran from the fall of 2006 to January of 2009. Indeed, by some mainstream measures those were years of surprising competence on the administration’s part. American conventional wisdom holds that the so-called “surge” in Iraq in 2007–08 was the most successful American counterinsurgency effort (maybe the only successful American counterinsurgency effort) in that country after the 2003 invasion. I doubt that the verdict of history will be kind to the surge, but it was not the contemporaneously obvious failure that many other parts of Bush administration policy in Iraq were, and it significantly shored up American support for military operations there. The 2006 opposition to the war that led to the Democratic gains in Congress was not constant for the following two years, and was partially alleviated during those years.

Perhaps more surprising still was the administration’s response to the 2007–08 financial crisis and in particular the financial panic of the two months before the presidential election. We might have expected prolonged paralysis: an unpopular Republican president at loggerheads with a Democratic Congress, ideologically indisposed toward activist intervention and frozen by the lame-duck lack of legitimacy. In fact 2008 saw extraordinary, and nimble, intervention in the financial markets by the Bush administration, at first piecemeal (placing Freddie Mac and Fannie Mae into conservatorship, bailing out some banks and insurers while intervening to ensure the more-or-less orderly dissolution of others) and then systematic (for example, through TARP). I don’t mean to comment here on the economic wisdom of the responses to the financial crisis, but rather to note how little they were like what one would have expected of a constitutional system in crisis. If, as political scientist Dan Drezner has argued, The System Worked (2014) in the response to the banking system’s global meltdown, the U.S.  parts of that system worked at least as well as any and better than most. “TARP and the related Federal Reserve programs… on policy grounds… were huge successes.” (177). Moreover, during the crucial months, it seems as if there was reasonably successful consultation between the Bush administration, the Obama and McCain campaigns, and then the Obama transition team. Under conditions that seemed on paper especially ripe for a complete structural and institutional failure, the result was… something else. 

I emphasize that I’m not substantively endorsing the surge in Iraq or any particular part of the 2008 financial interventions; understanding the relevant counterfactuals is far outside my expertise in both cases. But I mean to call attention to the divergence between what happened 2006–2008 and what we would expect to have happened with Levinson’s emphasis on a constitution “trapped into its byzantine ‘forms.’” In the face of new circumstances and significant objective policy challenges, the Bush administration was willing and able to take unpopular but, by policy-elite consensus, necessary actions even during its lame duck phase. 

As much as I’m inclined to share Levinson’s emphasis on constitutional procedures, institutions, and structures, I worry that he is busy fighting the last constitutional crisis, one he identified late in 2006. At the risk of straying outside the boundaries of our topic in this symposium, I would look elsewhere. The rule of law and due process have been badly eroded in a United States that has only faintly repudiated recent practices of torture, continues to operate an extralegal center for indefinite detainment after fifteen years, allows widespread police violence without legal consequence, and imprisons far more of its inhabitants than any other country in the world (ostensibly free and constitutional or otherwise), many held in inhumane conditions and many convicted under extremely dubious procedures. Popular support for violations of religious liberty is rising to frightening levels, and contributing to (while also being encouraged by) ugly populist electoral campaigns. Even if I was right in my previous contribution to this symposium that the American electoral system is relatively resistant to extremist and demagogic forces, that provides no guarantees, and no reason not to worry about how popular they are. These are where I would look for the crisis of American constitutionalism and constitutional democracy in 2015, whatever the truth of Levinson’s worries about a crisis of forms circa 2006.




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.