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Are we in a constitutional crisis? Or is it just a period of ‘constitutional rot’?

Constitutional law and history professors Sanford Levinson and Jack M. Balkin exchanged a series of worried letters during the year of Donald Trump’s rise to power and the first year of his presidency to discuss how the U.S. system was faring.

If you think everything is running normally and smoothly in the U.S. system of politics and government, don’t bother reading this post. On the other hand, if you’re concerned that our constitutional system is breaking down, or under grave danger of breaking down, what frightens you and what reassures you and how do you think it will turn out?

To put it another way: Are we in a constitutional crisis, such a serious breakdown that the future of the system is in question? Or are we going through a period of “constitutional rot”? According to one of the scholars I’ll be quoting below, a period of “constitutional rot” is something less serious than a “crisis,” something we’ve gone through before, where norms break down and the boundaries of appropriate conduct are tested. But we’ve weathered periods of “rot,” and, before the worst happens, Jimmy Stewart gives a great speech at the end of the third reel, and the day is saved, leading to a new and stable future definition of “normal” and functional U.S. politics and governance.

I don’t know the answer to the “crisis” or “rot” question, but I worry about it a lot. I’m a big Constitution nerd, a student of constitutional history, and have long thought our system has many sub-optimal features. But until the Trump years I never worried as much as I do now about the system breaking down or falling apart. And now I do worry. 

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A series of worried letters

Two eminent constitutional scholars, old friends who have debated and collaborated through the years, also worry. Constitutional law and history professors Sanford Levinson and Jack M. Balkin exchanged a series of worried letters during the year of Donald Trump’s rise to power and the first year of his presidency to discuss how the U.S. system was faring. The letters became a book: “Democracy and Dysfunction.” 

Levinson does use the language of a “constitutional crisis.” He doesn’t specifically say how it might end, but he believes weaknesses that have lurked within our system are stretched near to the breaking point.

Democracy and DysfunctionBalkin rejects that, or did until quite late in the two-year epistolary exchange. He argues that, so far, facts point to a case of “constitutional rot,” one which our system can survive and be restored to something closer to proper functionality. The changes needed to get back to that better place are not structural, but normative. Below, I transcribe and summarize some of their exchange.

Levinson, of the University of Texas, has criticized the Constitution as insufficiently democratic. In the letter to Balkin that opens the book, written in late 2015 before the rise of Trump would take over the discussion, Levinson listed some of his enduring criticisms of the constitutional system.

Our system makes it too hard (compared, for example, to a parliamentary system where a prime minister can be dumped by a vote of no confidence) to get rid of a president who has shown himself unfit, Levinson argues. It’s too hard to pass legislation, especially when the House and Senate are controlled by different parties — and even more so in the modern era of no-compromise. The Senate is structurally and deeply undemocratic, giving equal power to states irrespective of population. The 41 least populous states, comprising slightly less than half of the U.S. population, have 82 percent of the voting power in the Senate, while the nine biggest states,  collectively the majority of the population, hold 18 percent of Senate voting power. That’s undemocratic, Levinson writes. I agree.

You can argue that this is offset by the House where (disregarding such democratic distortions as gerrymandering), congressional power is distributed equally by population. But why should the basic rule of one-person/one vote be “offset” by an equally powerful body in which half the voters are dramatically overrepresented compared to the other half?

Levinson also (and this was before Trump’s election) hit the Electoral College system, which creates the possibility (and, it’s more than a possibility, it’s the current reality) of a president who won neither a majority nor even a plurality of the popular vote. And he argues that the bar for constitutional amendments (two-thirds of both houses plus ratification by three-fourths of the states) is such an “insuperable barrier to reform” that it changes the old “if it isn’t broken, it doesn’t need fixing” to, for constitutional reform purposes: “Because, as a practical matter, it can’t be fixed, let’s pretend it isn’t broken.”

Balkin’s rebuttal

In his first letter of rebuttal, still written before the Trump phenomenon takes over the conversation, Balkin suggests that Americans should seek to differentiate between the “hard-wired Constitution,” things that are embedded in the document, versus things that undermine the proper functioning of the system but are not hard-wired, and therefore are amenable to reform by means short of amendment.

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He gives a few examples of things that could be more easily changed. The architecture of the Electoral College is hard-wired. But the “winner-take-all” aspect of the state-by-state electoral votes is not embedded in the Constitution. There are ways (for example, the “National Popular Vote” project which I’ve written about here) to reform the system without a constitutional amendment to ensure that the candidate who gets the most votes wins the presidency. 

Discussion moves to Trump

But by the second exchange, (before Trump won the election but after he had risen to the lead for the Republican nomination) Trump had taken over the discussion.

Levinson:

No serious political system should have to contemplate the possibility of being ‘governed’ by a narcissistic sociopath without any effective way – impeachment and the 25th Amendment really do not count – of getting rid of him until the next election four years later. … This is simply to suggest that those who place their faith in the Madisonian system of checks and balances … are deluding themselves. James Madison has, truly and irrevocably, left the building.

Jack Balkin
Jack M. Balkin
Balkin pushes back. The Constitution didn’t give us Trump, he argues. If you look for the factors that fueled his rise, they are changes in the media environment: the rise of a right-wing Fox News and internet-driven echo chambers that “have encouraged motivated reasoning, and insulate many conservative voters from the facts, opinions, and interpretations of facts contrary to their ideology and beliefs.”

He points to partisan polarization, and to “conflict extension,” which I take to mean that the two parties have sorted out more clearly on ideological lines (for reasons that are hardly constitutional), which leads to partisan bloc voting on almost everything. But such Trump-enabling tendencies aren’t rooted in the weaknesses of the Constitution, says Balkin.

Trump’s particular skill set, as Balkin sees it, has seized on “status anxiety” among white working-class voters to exaggerate polarization. Trump portrays himself as the only thing standing between those Americans and various forms of doom. This anxiety certainly isn’t a breeding ground for calm or compromise, but is not the fault of the Constitutional text, argues Balkin.

So rather than focusing on the “hard-wired” Constitution, Balkin focuses on what he calls the larger and more amorphous “Constitutional order,” which includes statutes, administrative regulations, political norms and conventions, the nature of the rigid U.S. two-party duopoly and constitutional doctrines that have been created by courts and that could be modified by a future court.

All of the above was written when a Trump presidency was a mere possibility. Then — and you could argue that the Constitution does at least make it possible for someone to win the presidency with neither a majority nor even a plurality of the vote — someone did just that, guaranteeing that the rest of the Levinson-Balkin correspondence would be dominated ever more by the question of how much the Constitution was to blame for Trump, and how much of a threat Trump poses to the nation.

‘The most serious existential crisis since 1860’

On Nov. 26, 2016, in the first exchange after the election, Levinson pushed Balkin to acknowledge that something perhaps amorphous but related to the Constitution had failed. He wrote that, whether hard-wired or not, the “blend of written institutional structures and unwritten conventions and political culture,” which are supposed to bar an unscrupulous, unqualified demagogue from power, had failed “largely for the reasons you outline; Trump realized better than did any other that the traditional media have become delegitimized by the rise of social media that privilege ‘truthiness’ and, indeed, outright lies over what used to be regarded as facts” enabling Trump to executive a “hostile takeover” of the Republican Party” leading to “the most serious existential crisis since 1860.” (That last is, of course, a reference to the Civil War).

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In December 2016, Balkin replied:

Demagogues do not usually sneak up unawares. Members of the public often know that demagogues are selfish, unethical and unscrupulous, but they convince themselves that turning to such leaders is the only way to smash corrupt institutions and solve the country’s problems. Once in power, however, demagogues become tyrants, bringing republican government to an end.

Sanford Levinson
Sanford Levinson
Balkin was worried, but not predicting such an end. The next election was just two years off, he noted, adding, “The president’s party usually loses seats in Congress during the midterm elections. If President Trump proves incompetent or unpopular, he may well lose control of one or both houses of Congress in 2018. Losing even one house makes it possible for the Democrats to serve as a check on executive misbehavior through congressional committee investigations” and other tools available to a party that controls all or part of Congress. And that happened.

But Balkin admitted to worries that changes in the power of the presidency since the founding — even though those changes were not added by amendment to the “hard-wired” Constitution — raise the fear of “constitutional dictatorship”:

As you and I have written in our work on constitutional dictatorship, over the years Congress has delegated so much control to the White House that in many aspects of domestic and foreign policy the president can act unilaterally. … We can only guess what Trump will do with the quasi-dictatorial powers of the modern presidency.

Crisis vs. ‘rot’

Soon after Trump’s inauguration, Levinson warned of constitutional apocalypse, while Balkin, sounding substantially more worried than earlier, continued to hold the line against a declaration of “crisis “ and continues to explain his theory of constitutional “rot.” 

Feb. 21, 2017, Levinson:

Far more than you, I remain in at least a semi-apocalyptic frame of mind, frightened both of a dangerously unfit and psychologically unhinged president and of a Congress that seems committed to collaboration so long as they believe he will sign their bills that will, to the maximum feasible extent, undo not only Obamacare and Dodd-Frank, but also much of the Great Society and even the New Deal.

Balkin, in April, noted that the Constitution remained in force and “various institutions of government – both formal and informal – have stopped [Trump]” from doing basic harm to the system. …You can [call it a constitutional crisis] when politicians are saying that they will not comply with the law, with judicial orders, or with the Constitution. … Or when there is a widespread civil unrest or rebellion. Until that happens, you are not in a constitutional crisis, and for that, at least, you can be thankful.”

Other checks and balances, outside of structural constitutional features, were working, he added:  

Begin with civil society. Trump is, and remains, a particularly unpopular president. There have been sustained protests against his administration from its inception. Donations have flowed to groups like the ACLU to fight his policies. The institutions of mass culture – from late night television shows to YouTube regularly make fun of him. Mocking Trump has reinforced the idea that he is not someone to be feared. Successful dictators inspire caution and silence. Trump inspires ridicule. …

Personally, I suppose you could overdo the distinction between “crisis” and “rot,” but Balkin persuades me that it’s not just semantic. I don’t know how to gauge the extent of Trumpian damage to our fundamental system until we get to the other side. But neither does Levinson’s use of “crisis” language strike me as overwrought.

If Trump loses in 2020 but refuses to leave office (declare an emergency, dispute the results and refuse to accept any ruling other than that he was robbed, or what if the dispute went to the Supreme Court and the justices said he could stay by a 5-4 party-line vote?) it would all seem to qualify as “crisis” or worse, at least to me.

The alarming sounding “rot,” as Balkin uses the term, is something the system’s antibodies might cure. A president who respects the constitutional system might take over or be forced by Congress to abide by the creaky old system and, sadder but wiser, the American system would go forward and the Constitution worshipers would likely take it as evidence that the magic of the document is self-perpetuating.

Dangers of changes in media and information systems

By mid-2017, Balkin’s letters moved on to analyzing the danger to our democracy of the changes in our media and information systems, hitting Fox News and the internet culture as elements of a “domestic propaganda machine” that have thrown their support behind Trump. He wrote:

Propaganda attempts to put everything in dispute so that nothing can be established as true, and everything becomes a matter of personal opinion or partisan belief. If everything is a matter of opinion, anything a political opponent says can be disregarded, and factual claims contrary to one’s own beliefs can also be disregarded…[leading to a situation in which inconvenient facts can be disregarded and Americans] “can simply make political decisions based on identity or affiliation with their political allies. …

In October of 2017, Levinson noted that when the framers created the presidency (no such powerful executive position existed under the Articles of Confederation) they worried about the danger of a demagogue rising to such power. So they built in a mechanism to safeguard against it.

The Electoral College

With cruel irony, Levinson notes that in the Federalist Papers (#68), Alexander Hamilton described the weird, complicated Electoral College process as designed to ensure against the rise of a demagogue to the presidency. His logic, as Levinson wrote: “the electors [would] be trustees for the public and would simply refuse to [elect] a scoundrel” for president. Hamilton wrote that: “The process of election affords a moral certainty that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualification … filled by character pre-eminent for ability and virtue.” Levinson responds to that quote with: “One reads these words today and weeps.”

In his second-to-last letter, written in November of 2017 after one year of the Trump presidency, Balkin turns his worried eye to the danger of Trump‘s foreign policy, writing:

 In a very short space of time, Trump may manage to destroy a carefully constructed legal, political and economic order, built up through many decades of sacrifice and hard work, that not only services American interests, but also promotes international law and the use of diplomacy over resort to violence, and has managed to secure peace over most of Europe for generations. …

Trump took power at a crucial moment in world history. … China would like to displace us as the world’s preeminent power; Russia would like to knock us down a peg so that it can rise in comparative status. … Our most steadfast allies, Europe and Japan, wonder whether they can or should continue to rely on American leadership. … But at this crucial moment, Donald Trump, even if he never stumbles into war, has the power to destroy all that Americans have worked for in the last 70 years, to undermine American’s place in the world, and to generate a setback for world peace and prosperity from which we may never recover. If any one person has the power to bring an end to America’s leadership and destroy America’s power to do good in the world, it is not Xi Jinping or Vladimir Putin – it is Donald Trump.

The last exchange occurred in January of 2018, which means, of course, the two scholars hadn’t yet seen the political course correction (which Balkin sort of predicted above) represented by Democrats taking over the House, thus reducing Trump’s ability to impose his will.

Levinson circled to the shortcomings of the Constitution as the root of the problem, and to beg the country to face up to them and fix them, now that Trump has demonstrated just how much trouble they can cause. He wrote: “’We the people’ seem to be like parents giving their six-year-old a book of easily lit matches and then going out for dinner, hoping that nothing amiss happens in our absence.”

He noted that, without changing the “hard-wired Constitution,” Trump and congressional Republicans had pushed through a tax cut, which gave much of its benefit and the only permanent cuts to the already-wealthy, by a process that flaunted the norms of how a bill becomes law in the old Schoolhouse Rock video. He wrote: “No hearings were held, and such debate as in fact occurred featured the presentation of knowing lies to the American public.”

Levinson called it “a technocratic fantasy to believe that a ‘well-designed constitution’ can save a polity with a political culture that does not, for example, recognize the existence of plural views and values and the concomitant need to negotiate with adversaries and even make compromises with them for the sake of civic peace.”

In his final “Dear Sandy” letter, Balkin predicted that while a Trumpish coalition may continue to win some elections, especially in the South, “the odds that it can form a new national majority coalition seem longer every day.” 

Writing before the 2018 midterms, which ended the total Republican control of Congress, he predicted the next political “regime” (a term some scholars use to refer to the various coalitions that have dominated U.S. politics for periods of time) will “feature the Democrats as the majority party” rooted in “the natural evolution of the Obama coalition – of minorities, professionals, millennials, suburbanites and women. … I predict that Americans will tire of incompetence and venality. They will cry out for a government they can once again trust. And they will mobilize to that goal. … I do not profess to know how Trump’s presidency will end. But I believe that Trump’s greatest gift to the country is the gift of destruction – not of the country, but of the coalition he leads and the complacent oligarchy that strangles our democracy.”