About December 2015
The term gets used a lot: constitutional crisis. But what does it mean, really? And how can polities prepare for what seems like a possibly inevitable part of governing in a flawed and complicated world? What can we do to make constitutional crises rarer and more survivable? If that’s too ambitious, can we at least resolve to think about them more clearly?
This month we have invited constitutional scholars from a variety of different subfields to discuss the constitutional crisis. Our panel tends toward comparative constitutionalism, in the expectation that the history and practice of constitutionalism can reveal how to craft more enduring and stable constitutions for the world’s represenative democracies.
Sanford Levinson, our lead essayist, is the author (with Jack Balkin) of a seminal article on constitutional crises; he reviews some of the findings of that article here. Jacob T. Levy is a leading classical liberal political theorist who has published much on constitutional theory. Richard Albert is a constitutional law professor at Boston College with a specialization in comparative constitutional law. And Professor Tom Ginsburg of the Universtiy of Chicago is co-director of the Comparative Constitutions Project, which collects and examines data on how constitutions of various types work in practice.
Please join us for essays and discussion throughout the month.
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.
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.
Discussion to through the end of the month.
Related at Cato
Event: Constition Day, 2015
Journal: Cato Supreme Court Review