Summing Up

Let me preface my final words by conveying once more my genuine gratitude to both Cato and the conversational partners for facilitating this discussion. I will try to make these comments more brief than my prior ones.

 First, in response to Richard Albert’s comment. Albert seems to deny that there is a crisis in the United States. But if there is one, he argues that its nature pales in significance before the crises that one sees in such countries as Haiti or a host of other potential exemplars. In one sense he is clearly correct. No one (yet) refers to the United States as a “failed state” or to the United States Constitution as simply a sham that explains nothing with regard to the operation of those with power within the political system. Indeed, if anything, my analysis emphasizes the causal role played by the U.S. Constitution in explaining what I regard as systemic deficiencies.

Still, the fact that we are not Haiti or Lebanon (or fill in the blank with some other negative example) should provide little in the way of real relief. As the old—actually, just made up for the occasion—saying goes, “when the lion farts, all of the other animals in the jungle sit up and take notice.” The brute fact is that what happens in most of the 193 current members of the United Nations is of relatively little importance, unless, of course, as in Syria most dramatically at present, there are spillover effects that indeed get the attention of the rest of the animals. It is a sad truth, though, that what happens in Haiti, by and large, stays in Haiti (not least because the United States effectively prevents immigration by refugees). That is true of many other countries that are in turmoil and far more obvious crisis than the United States. With regard to the United States, however, our inability to meet what Chief Justice Marshall in McCulloch v. Maryland called “the various crises of human affairs” affects the welfare not only of members of our own polity, but also of persons throughout the world. I therefore find my friend Richard Albert far too complacent about the consequence of contemporary American dysfunctionality and its likely continuation into the foreseeable future. To be sure, the coming to power of a President Cruz, backed by a Republican House and Senate, would presumably bring gridlock to an end. At that point, the critique would be more straightforwardly political by persons like myself, while those cheered by such a development could proclaim that the system once more “works.” We’ll find out in a couple of years what the reality is.

As for Jacob Levy’s point, he too is correct that the particular problem/”crisis” posed by a lame-duck presidency like George W. Bush’s is no longer the central example, and it is even the case, as he notes, that Bush was not a total cipher during that time. As a matter of fact, he—or, more accurately his Secretary of the Treasury and the head of the Federal Reserve Board Ben Bernanke—behaved responsibly with regard to the imminent collapse of the international economic order. But it was a close call, and, of course, we are still debating about the wisdom of the Bush administration in letting Lehman Brothers fail. And, of course, their legal power continued after what might be viewed as the repudiation of the Bush administration in the 2008 election. Recall the mischief that George H.W. Bush did, relative to the Clinton administration, by his decision after his defeat to send American personnel to Somalia. One might imagine what President Obama might be tempted to do, altogether legally, following a Cruz victory and prior to January 20. In any event, I offered lame-duckdom only as one example of how our formal political system is deficient. I could easily have spent more time on the operation of bicameralism, including the routine use of filibusters in the Senate that negates, in almost all instances, any semblance of majority rule in that already grievously flawed institution, let alone “democratic governance” by Congress more generally.

I confess that what concerns me most is our general tendency, reflected in the altogether civil and incisive responses to my earlier postings, to minimize the extent to which the American political system might indeed be significantly flawed and, therefore, in need of the serious “reflection and choice” that Publius advocated in Federalist 1. It is nearly impossible to imagine any significant constitutional reformation given the especially egregious Article V, and it is thus apparently an irresistible temptation to insist that things are not really broken and, therefore, need no fixing. I agree that it is truly depressing to believe that things are broken but can’t be fixed. That is especially depressing on New Year’s Day, when we all want to believe that next year can bring happy changes if only we resolve to make them happen.

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.