Consider the impeachments of Richard Nixon and Bill Clinton. Did either of them amount to a constitutional crisis? The answer is no, even though they clearly constituted political crises for both of the presidents, one of them proving fatal to his continuation in office. But the Constitution provides for a method of terminating the tenure in office of a president thought to have committed “high crimes or misdemeanors,” and one can argue that the system worked in both cases, depending, of course, on whether one is inclined to adopt a somewhat latitudinarian view of President Clinton’s undoubted misconduct in office. One might debate whether the standards for impeachment are too strict: Should it really require the commission of “high” crimes? Perhaps something less than a two-thirds vote of the Senate should be sufficient for conviction? But, in context, these are relatively minor matters.

Consider, though, a quite different scenario, where the presidential incumbent has committed no crimes or misdemeanors of any kind, let alone “high” ones, but has provided significant evidence of truly bad judgment about issues relating to war or peace (and concomitant life or death), or to basic stewardship of the economy. What then? The answer is that we are presumably stuck with such individuals—and their possession of all legal powers attached to the office—until the end of their term of office; this could easily last for over two years if the moment of disillusionment, say, occurred only eighteen months after initial election. The sharpest distinction between a presidentialist separation-of-powers system like that found in the United States and parliamentary systems found in most countries of the world today is that prime ministers have no guaranteed tenure in office. They are subject to votes of no confidence by the parliament; indeed, as in Great Britain, a sitting prime minister can be forced out of office by the equivalent of a no confidence vote within the prime minister’s party caucus itself. Thus Margaret Thatcher, surely one of the most important peacetime prime ministers in British history, was unceremoniously forced out of office in 1990 when she lost the confidence of her fellow Conservatives. She was seen as a likely electoral liability in the next election, whatever her earlier successes, and she was replaced by John Major (who in fact won the next election).

That, obviously, cannot happen in the United States. It did not matter, for example, that Harry Truman in 1951 and George W. Bush in 2006 enjoyed the support of only roughly one-quarter of the American people. Both were guaranteed tenure until 1953 and 2009, respectively, while the United States was bogged down in decidedly unpopular wars over which they presided as Commanders in Chief. Should we describe that as a constitutional crisis? I would be inclined to say yes, depending, of course, on the magnitude of discontent at the prospect of these (or any other particular president) staying in office after what one might stipulate to be justified disillusionment sets in.

That is, a constitutional crisis requires an important gap between the demands of a particular situation or time and the impermeable structures of the political system. When faced with such a crisis, there are only two choices, neither of them genuinely attractive. One of them is to do something to rectify the situation, even if that something, almost by definition, requires violating what appear to be the rules laid down by the specifics of the constitutional order. The key decisionmaker, often the President, admits that the legal system is in fact inadequate and that some form of extra-legal conduct is required. In the typology that I have developed, this as a Type 1 crisis, engendering disobedience to law. A second response is simply to accept the situation, hunker down, and hope for the best, saying all the while that nothing really can be done while remaining within the constraints of the legal order. I describe this as a Type 2 crisis, where fidelity to law is accepted even though it also seems likely to lead to disaster. Type 1 crises may forestall disaster, but only by discrediting the most prevalent model of the Rule of Law. Type 2 crises fetishize the rule of law itself: Let the law be followed though the heavens fall.

The original constitutional crisis within post-Revolutionary War America arose from the perceived inadequacies of America’s first, and almost wholly forgotten, constitution, the Articles of Confederation. After all, Publius begins Federalist No. 1 with a reference to the “inefficiency” of the existing governmental structure; by Federalist No. 15, he will refer to the “imbecility of our government.” Adhering to the rules set down in the 1781 Articles would, he argued, doom the young republic, which would probably dissolve into two or three separate countries along the Atlantic coast. These would find themselves emulating the worst of Europe, engaged in constant warfare. Something needed to be done, and fortunately, the delegates to the Philadelphia Convention provided a solution, though it involved transforming a Type 2 crisis into Type 1, with disregard for legal forms.

After all, Article XIII of the Articles of Confederation provided that any amendment of the terms of “perpetual union” established by them would have to gain the unanimous concurrence of the state legislatures of all thirteen members. So long as one took the Articles seriously, that was a fatal stumbling block. Indeed, Rhode Island had refused to send delegates to Philadelphia because of the wholly justified perception that it would become what we today would describe as a “runaway” convention that would not recognize the limits placed upon it. What turned out to be unjustified was Rhode Island’s belief that it could always count on its veto right as guaranteed by Article XIII. Instead, perhaps the most important single article of the Constitution was Article VII, which provided that the new Constitution would come into being when ratified by the conventions (i.e., not the legislatures) of only nine (i.e., not all thirteen) states. Thus it was of no juridical consequence that neither Rhode Island nor North Carolina had ratified the Constitution when George Washington took his oath of office on April 30, 1789 as the first President of the United States. As it happened, both states did ratify the Constitution, Rhode Island by the less than inspiring vote of 34-32 in 1790. It may have feared that any attempt to stay out of the Union would be met with military force from Massachusetts or Connecticut, neither of which was about to allow an independent de-facto smuggler’s paradise at Newport harbor.

How did Publius defend this? And what about the decision by the Convention to exceed its power only to “revise” the Articles? One might commend him for a certain forthrightness unlikely to be found in most presidents today.  Publius offered his response in Federalist No. 40. The long and the short of it was that the United States was faced with “exigencies,” what today we would call “emergencies.” Indeed, he emphasized the extent to which the delegates in Philadelphia “were deeply and unanimously impressed with the crisis” facing the country. Such a situation demanded doing what was deemed necessary and not feeling confined by the rules set down by the Articles (or Congress), including, of course, Article XIII. Publius made clear his utter contempt for the notion that Rhode Island, with one-sixtieth of the national population, could play the role of spoiler and prevent the necessary transformation. “In such circumstances,” Publius argued, “forms ought to give way to substance.” One ought to condemn “a rigid adherence” to “forms,” what some might simply define as legal fidelity. The proper precedent was set by the great leaders of the American Revolution themselves, claimed Publius, inasmuch as they displayed “no little ill-timed scruples, no zeal for adhering to ordinary forms.” We honor them not for their fidelity to legal norms, but instead for their willingness to do what they believed best for their country.

In case we have not already gotten the picture, the next essay of The Federalist, No. 41, gives perhaps the most chilling analysis of how best to respond to such potential disconnects between the formalities of the legal order and the exigencies of a situation. Publius, who throughout the 85 essays that constitute The Federalist indicates his mistrust of mere “parchment barriers,” declares that “It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” Political leaders will inevitably, and properly, he seems to suggest, prove ever-willing to transcend apparent constitutional limits when faced with what appear to be threats to national “self-preservation.” Such “usurpations of power” are not to be condemned, but, instead, are to be regarded as “necessary.” Just as the delegates to Philadelphia displayed an acute recognition of when it was the case that “rules were made to be broken” rather than complied with, so would future leaders. Type 2 crises will always be resolved either by transformation into Type 1 crises, where illegal conduct is in effect admitted, or, more commonly, where leaders responding to “exigencies” before them offer highly controversial readings of the Constitution or of statutes to justify their actions. Perhaps we should describe the kinds of acrimony produced by such readings as a Type 3 crisis, inasmuch as it demonstrates that even highly skilled lawyers or judges cannot in fact produce anything resembling a “consensus” about the proper use of governmental power in such situations.  Justice Scalia was surely right when he commented in an interview that he and his colleagues are not “in agreement on the basic question of what we think we’re doing when we interpret the Constitution,” and that sense of being intellectually adrift is surely mirrored in the general American community.

Modern presidents, after all, have extensive legal staffs whose job, it appears, is to offer legal apologias for presidential envelope-pushing. Democrats can easily summon up John Yoo and his justification of the President’s authority to order torture (or to redefine waterboarding as “not torture”); at least some Republicans might prefer to cite Harold Koh’s remarkable argument that Barack Obama’s unilateral decision to bomb Libya raised no War Powers Act problems because the bombing did not constitute “hostilities” as defined by the Act (which presumably limits “hostilities” only to threats to American lives and not to the lives of people being bombed by American forces). We may debate whether we should be reassured by these and many other efforts to deny presidential overreaching. Of course, a major precedent for such denial is provided by Abraham Lincoln, who notably claimed the unilateral right to suspend habeas corpus even though the placement of the provision authorizing such suspension in Article I suggests to most lawyers (and to Chief Justice Taney) that prior congressional approval is necessary in order to suspend the “great writ” designed to protect against governmental tyranny.

So perhaps we can take a certain cold comfort in the proposition that many Type 2 crises will be resolved by bold action that will in time be accepted as properly “within” the domain of presidential power. But if one defines a constitutional crisis by reference to the lacunae between perceived emergencies and the ability of the political system effectively to respond to them, one could also refer to the propensities for gridlock built into the American constitutional order as guaranteeing repeated Type 2 constitutional crises, where vigorous action is unavailing. Even enthusiasts for presidential power will admit, as did President Obama himself, that presidents are not “kings” or “emperors” and, therefore, need congressional authorization in order to carry out what they view as vitally necessary programs. A President Cruz could not, by virtue of his office, carry out a campaign promise to “repeal Obamacare” unless Congress agreed to do so, and that might be difficult, if not impossible, to obtain, especially if Democrats regain control of the Senate. Even more obviously, a President Hilary Clinton would take office knowing that achievement of her campaign platform would be impossible in the face of presumed continued Republican control of the House of Representatives, whatever happens in the Senate in next year’s elections. One might predict that both Cruz and Clinton would try to take full advantage of whatever presidential prerogatives were available, but both would realize that those are indeed not unlimited.

Whatever the results of the election, one might well predict that most Americans would be extraordinarily frustrated by the continued gridlock within Congress and the failure adequately to confront whatever one thought were the major challenges at hand. Even the briefest analysis of contemporary polling data reveals that the overwhelming percentage of Americans are discontented with the workings of the national government, and Congress in particular. A Veterans Day Gallup Poll indicated that 86% of the public disapproved of Congress, while 11% approved. Unlike presidential approval rankings, which may be rough proxies for political party identification, the congressional ratings—or the answers given to questions about confidence in the future of the country, where a November 12 New York Times/CBS poll indicated that 62% of those polled believed we were moving in the wrong direction—appear to cut more deeply. No doubt most supporters of the Cato Institute might have different reasons for their discontents from mine, but I suspect we are united by a belief that the national system is simply non-responsive to what we believe to be the most important challenges facing it, whether it requires the passage of brand new legislation dealing with, say, climate change or the repeal of existing legislation like Obamacare. Neither is likely happen, and much besides will remain untreated by Congress, which will meet for fewer and fewer productive days and pass less and less truly consequential legislation.

Perhaps the most common rhetorical trope when referring to the American political system, found in columns by pundits across the political spectrum, is that it has become “dysfunctional,” and, in the memorable words of Norman Ornstein and Thomas Mann, that things are “even worse than it looks.” Still, what one rarely sees is the suggestion that we are suffering through a genuine constitutional crisis because of the “imbecilities” of certain aspects of the constitutional order that was created in 1787 and left substantially unamended since then. Instead, what one reads are heartfelt attacks on those with whom one disagrees and the suggestion that if only we could elect one’s own champions, then everything would be all right. If that were in fact the case, the only crisis would indeed be political, and we could celebrate the Constitution as providing the mechanism, through regular elections, of voting the rascals out, albeit belatedly, and placing the right candidates into office. It is much scarier, in every way, to believe that the Constitution—and our being trapped into its byzantine “forms”—is a bug, and not a feature, of our political system. That is what constitutes our most fundamental constitutional crisis.

Over many years I’ve gradually abandoned my instinctive American attachment to the presidentialist model of the separation of powers. I have done so for a variety of reasons, including my reading of the political science literature on the instability of presidentialist regimes and an increasing appreciation for the ways that presdientialism encourages an unhealthy anti-partisan sense that the current head of government does (or is supposed to) embody and speak for a unified national will. Parliamentary systems that separate the offices of head of government and head of state seem much less susceptible to that pathology. I’ve also been swayed by the combination of the Bush administration’s extraordinary executive overreach and my own (unrelated) migration to Canada, where I’ve necessarily stopped thinking of parliamentarism as strange and exotic.

But my thinking about presidentialism and the separation of powers has also been significantly moved by Sandy Levinson’s writings on the topic over the past decade or so. I find Professor Levinson’s distinctive approach to fusing political theory, political science, and constitutional law important and valuable, and I think it gives him a particular ability to think about the American constitutional order in creative ways – an orientation toward constitutional studies as a unified field, not narrowly tied to constitutional law within existing constitutional structures, but always engaged with it. When the author of a book appropriately titled Constitutional Faith turned instead toward such sharply critical works as Our Undemocratic Constitution, I paid attention, took the new arguments seriously, and was more persuaded than I would have expected.

The critique of the presidentialist model of the separation of powers plays an important part in his present indictment of the crisis and dysfunction of the American political and constitutional system. But I do not share his certainty that the system is in crisis, or that the constitutional structure lies at the root of it. Levinson’s account is an expression of American exceptionalism – critical rather than celebratory, but exceptionalism nonetheless – that seems to me unfounded.

An apparent loss of faith in democratic institutions and processes has been widely documented across the constitutional democracies of the world for many years. Indeed, in what seem like the era of liberal democratic triumphalism between 1989 and 2001 this was a major preoccupation of political scientists. The influential collections Disaffected Democracies (Pharr and Putnam eds., Princeton, 2000) and Critical Citizens (Norris ed., Oxford, 1999) were published when the phenomenon had been well-known enough for long enough to attract a range of scholars’ attention and a variety of hypothesized explanations. In the (very long) wake of the wars of the 2000s and the financial crisis of 2008, things are unsurprisingly no better, and in many countries worse. Even the avowedly relatively optimistic accounting provided by Norris’ Democratic Deficit: Critical Citizens Revisited (Cambridge, 2010) that shows fluctuations around particular events and news cycles shows unimpressive-at-best levels of confidence in parliamentary institutions and political parties in most established democracies other than the Scandinavian countries and the Netherlands.

At this writing the National Front has scored a dismayingly strong result, one of its best ever, in French regional elections – partly a result of the continuing shock of terrorist attacks in Paris in January and November, but only partly. The parties of the constitutional democratic center – be they conservative, liberal, or social democratic – are under rising challenge from populist and extremist parties of the right and left in most European democracies. I am reluctant to venture guesses as to the cause of all this – how much is simply due to economic bad times, how much to the EU’s democratic deficit, how much to the refugee crisis, fears of foreigners, and fear of terrorism. I am enough of a pessimist not to take it for granted that support for the constitutional democratic center is always the norm, with exceptions to be explained away as anomalous. But one thing I do feel confident in saying is that this is not a crisis of constitutional structures and mechanisms, which vary considerably from one country to the next. And it is assuredly not a crisis of America’s constitutional structures in particular.

Indeed, one virtue of the American political system is that it encourages an almost uniquely powerful two-party system (a result of presidentialism, not, as is sometimes thought, of first-past-the-post elections in general) that captures political extremes within broad coalitions and thereby in part neutralizes them. I say this advisedly and cautiously, in the Age of Trump. But it remains most political scientists’ view that the Republican Party apparatus will successfully block his path to the nomination.

If the democratic malaise that Levinson refers to as a symptom is not as distinctively American as his argument would seem to require, neither are all of the structural difficulties to which he points as causes. The complicated tension between the rule of general law and rapid, flexible executive action, and the question of whether and how executives can be effectively constrained by law at all – these are old problems, and getting worse everywhere. The limits on how much knowledge a few hundred people can distill into how many acts of legislation don’t change much over time, whereas executive-branch administrative agencies and military and police apparatuses can grow indefinitely. As Levinson knows, some leading scholars of executive-legislative relations such as Adrian Vermeule and Eric Posner (The Executive Unbound, Oxford 2010) hold that it is pretty much necessarily the case that executives rule under modern conditions, facing ex post accountability but not ex ante restraint. Little of their argument is unique to American structures; much has to do with general circumstances of administrative and military policy.

And indeed parliamentary systems are likewise struggling to find a stable balance. Westminster systems tend to produce very strong executives because they lead pluralities or majorities in party-discipline legislatures – so much so that Americans often doubt whether Westminster systems can properly be said to have a separation of powers at all. But across the Westminster systems there has been pushback against the model of the unconstrained executive – seen, for example, in the development of a post-Iraq “convention” that the British Prime Minister, despite retaining legal powers over war and peace, had a duty to “consult” with the House of Commons before committing troops to major military action. The centralization of power in a secretive Prime Minister’s Office under the Conservative government over the past decade in Canada contributed to a widespread sense that parliamentary rule had been undermined, and the new Liberal government campaigned on a platform that included a rebalancing of executive-legislative relations. We don’t know whether the British convention will have teeth or the Canadian rebalancing will happen. Indeed, the executive may grow more powerful: the Conservative government in Britain is moving to break the power of the House of Lords to block legislation, a power that has been one of the few structural (rather than cultural or conventional) checks on prime ministerial authority there. What we do know is that the problem of maintaining legislative authority in the face of executive policymaking power isn’t unique to the United States.

That is not to say that all is well in American governance, or that there aren’t some distinctive kinds of dysfunction. To take one important example, the recurring flirtation with disaster about the federal government’s debt limit is unknown in other countries. This is because it is absurd: a legislature with responsibility for budgeting that passes bills raising revenue at one level and spending at a higher level has, by doing so, legislated that borrowing must occur; the need for additional legislation to authorize the borrowing that the legislature has already mandated makes no sense. But this is not a feature of the American constitutional system in the way Levinson means; it is statutory.

More generally, the American constitution was framed for a nonpartisan democratic republic. This was a mistake of 18^th-century republican ideology; we have since learned that large-scale democracy depends on partisan contestation. Once a stable two-party system took shape after the Civil War, the structures were able to accommodate this in part because the American parties were unusually inchoate. The overlay of economic questions with those concerning the maintenance of apartheid in the American south meant that each party was a coalition of especially disparate groups. The increasing ideological coherence of the two parties since conservative southern whites migrated to the Republican Party puts genuine strain on the system, a strain worsened by the move to supermajoritarian rules for action in the Senate.

But these problems of structure are neither necessary nor sufficient to explain democratic malaise, and changing the structures wouldn’t do much to affect general problems about how to govern by law in a world of wide executive discretion. There’s plenty that is bad in American politics; that’s a truth about politics generally. But if this is a “crisis,” or even a setting for crisis, then I’ll close by misquoting Adam Smith: There is a great deal of “crisis” in a nation, or in a constitution.

Virtually all of the world’s codified constitutions are amendable using special procedures that require legislative or popular approval, and sometimes both. But an increasing number of constitutions—over half of the world’s new constitutions since the fall of the Berlin Wall—make at least one constitutional value unamendable, impervious to the people’s amendment power even where large majorities may wish to amend it. In Germany, human dignity is unamendable, as is republicanism in France, federalism in Brazil, socialism in Cuba, secularism in Turkey, and Islamic republicanism in Afghanistan. The U.S. Constitution, for its part, is entirely unamendable, from top to bottom, on all matters both big and small.

But the unamendability of the U.S. Constitution is not an intentional constitutional design, as it is in most countries, for instance in Italy where the authors of the constitution made a deliberate choice to exempt republicanism from the rules of constitutional amendment. Nor does the unamendability of the U.S. Constitution derive from constitutional interpretation, as in India, where the Supreme Court has determined that the constitution’s “basic structure” is unamendable despite there being no mention of unamendability in the constitutional text.

The unamendability of the U.S. Constitution derives instead from constitutional politics. In the present political climate it is practically unimaginable, though it nonetheless remains theoretically possible, to assemble the required supermajorities for a constitutional amendment. This is the gridlock that Sanford Levinson suggests, in the lead essay for this symposium, can lead to a Type 2 constitutional crisis. The deep divisions in Congress and among the states make unlikely even simple majority agreement on nearly anything of importance, let alone the onerous supermajority agreement the Constitution requires for amendment. Under Article V, two-thirds of Congress and three-quarters of the states must agree to a constitutional amendment, no small feat.

The best evidence of the difficulty of constitutional amendment in the United States is the historical rate of amendment failure. Literally thousands of amendments have been proposed since 1789, but only 27 have succeeded. Of those, then ten in the Bill of Rights were passed as a condition of adopting the Constitution to begin with; the Thirteenth, and Fourteenth, and Fifteenth were controversially forced upon the states during Reconstruction; and the Twenty-First repealed the Eighteenth. Others, like the Seventeenth and Twenty-Second, had become law by political practice well before they ultimately became law by formal amendment. It may therefore overestimate the number of actual amendments to simply count the ones that appear in the text of the Constitution.

This suggests to me that the U.S. Constitution is best understood as constructively unamendable. Its unamendability is not a legal fact but rather a political reality that we may infer from the current state of American politics. Reading the text of the Constitution alone gives the mistaken impression that everything is freely amendable, but really nothing today is amendable.

Federalism is also a cause of constructive unamendability. In federal democracies, the rules of constitutional amendment are designed to protect dual interests, and they commonly grant veto powers to both the national and subnational governments for amendments to federalist institutions. In Canada, for example, amending the method for selecting senators requires the consent of both Parliament and a supermajority of provinces. In Australia, amending the powers or boundaries of a state requires the approval of a majority of voters in that affected state in addition to majority approval in both houses of the national legislature and by national referendum. It is no coincidence that federal states like these often rank very high on indices of amendment difficulty.

Or consider a state’s representation in the U.S. Senate, for which the Equal Suffrage Clause requires the consent of the state whose representation is changed, a rule that could well be interpreted to require the unanimous consent of states, not just of the state whose representation is diminished. But amendment would nonetheless remain unlikely if the Clause required the consent only of the state whose representation had been diminished. Why would any state agree to that?

Indeed, the U.S. Constitution is one of the world’s most difficult to amend, if not the most difficult according to scholars of comparative constitutional law, though I have recently shown why the Canadian Constitution may be even more difficult to amend. But wherever the U.S. Constitution ranks on the scale, no one can deny that it is extraordinarily difficult to amend.

It was not always this way. The U.S. Constitution was once thought too easy to amend. In the Progressive Era, there were four constitutional amendments in a short span of fewer than ten years: the Sixteenth Amendment, authorizing a direct income tax in 1913; the Seventeenth Amendment, establishing direct elections to the United States Senate, also in 1913; the Eighteenth Amendment, imposing prohibition in 1919; and the Nineteenth Amendment, constitutionalizing women’s suffrage in 1920.

Constructive unamendability, then, is not a permanent feature of the Constitution. Just as new political fault lines may form to create intractable conditions that prevent the formation of the consensus needed for an amendment, so too may political circumstances evolve to alleviate the pressures that generated the intractable conditions to begin with.

The incompatibilities that today complicate the possibility of political agreement on an amendment may tomorrow dissolve or at the very least become less pointed, or the people may in the future apply sufficient pressure to push political actors past their present impasse, or some emergency may move political actors to rise above their partisan disagreements in the service of the larger good. These are all real possibilities that would be consistent with the lived American experience.

All of which leads me both to agree and to disagree with Levinson that America’s “most fundamental crisis” is the failure to accept that “the Constitution—and our being trapped into its byzantine ‘forms’—is a bug, and not a feature, of our political system.”

I agree that it is worth asking whether the constructive unamendability of the U.S. Constitution may have today descended the country into some kind of constitutional crisis. But it is not clear what kind of crisis it is. Where is the disobedience to law, which characterizes Type 1 crises? Or the blind fidelity to law that triggers Type 2 crises? Where are the extraordinary forms of struggle and opposition that occur in Type 3 crises?

The core of Levinson’s critique of the Constitution is not the gridlock itself but rather what allows the gridlock to persist. For instance, the design of the Senate—which gives population-poor Wyoming the same power as population-rich California—is both a symptom and a cause of the constitutional crisis he identifies. But as he has written elsewhere, perhaps the biggest problem is America’s veneration of its Constitution. Americans resist the idea of too much tinkering with the majestic creation of the Philadelphia Convention. What lies beneath this resistance is a culture of framer-worship, a deep respect for tradition, a fear of the unknown, and in some ways a belief in manifest destiny that only the Constitution as originally designed can secure. On their own and collectively, these are serious barriers to constitutional amendment, whether through the Congress-centric amendment process that has been used since after the founding or the convention-centric amendment process that Article V allows but that the people have never once used since 1789.

Although the Constitution has been amended relatively few times, its meaning has changed many times over the years, both in ways that do not appear in the constitutional text and in others that in fact belie it. The source of most of these unwritten changes—what some call informal amendments—has been judicial interpretation. The Supreme Court has become the modern Philadelphia Convention, a continuing constituent assembly that has merged into itself the two historically separated functions of interpreting and amending the Constitution.

But those who oppose what is derisively called “judicial activism” should remember that Congress, the states, and the people have the authority to reverse a Supreme Court opinion using the amendment power in Article V. Article V has been used in this way a handful of times thus far in American history. It may not be possible to use Article V in this way or indeed at all today, but the constitutional text is not fated to its present stasis.

True, getting two-thirds of Congress to agree to propose an amendment is unlikely. In the near term, then, the congressional pre-veto will stand in the way of an Article V amendment. And it is unlikely, though they have come close in the past, that two-thirds of the states could one day properly petition Congress to call a convention to propose amendments for state ratification.

One strategy to counteract the constructive unamendability of the Constitution is to find new ways to send amendment proposals to the states for their possible ratification. The modern transformation of American politics into a strong form of presidential government suggests that the President could offer a solution, if even a temporary one, where congressional inaction threatens to generate or exacerbate a constitutional crisis of any of three types Levinson identifies.

The President could take over the function the Constitution assigns to Congress and issue an amendment proposal directly to the states, with instructions to vote on the proposal in state conventions. States could then deliberate on the amendment in extraordinary assemblies, the amendment ultimately being adopted if three-quarters of the states vote in favor.

On one reading, this would itself be a Type 1 crisis: It amounts to disobedience of the rules of Article V, which make no mention of the President and authorize only Congress or a constitutional convention to propose amendments for the states to consider in either state legislatures or conventions.

But on another reading, Article V is not the only way to amend the Constitution. It specifies only certain but not all ways to alter the text. This president-initiated amendment procedure would not be a violation of Article V but rather a creative innovation within its prescribed structure of proposal by some national institution of government and ratification by the state institutions.

The reason why only state conventions should have the power to ratify a president-initiated amendment is the same as why the Philadelphia Convention instructed states to ratify the proposed constitution in state conventions: only extraordinary assemblies of the people can legitimate a change that may on its face appear to violate the formal rules of the existing constitution. Just as the Philadelphia Convention exceeded its mandate to revise the Articles of Confederation by proposing an altogether new constitution, here the President could be accused of exceeding the boundaries of Article V. But successful ratification by state conventions would transform what some would assuredly challenge as an illegal amendment into a legitimate one.

All of this of course presumes that the United States Constitution desperately needs to be amended or replaced. On that front, I take a different view from Levinson. I do not believe the Constitution is broken, nor that it is mired in crisis, nor that it has caused one today—nor however do I agree with Alexis de Tocqueville, who once wrote that it is “the most perfect federal constitution that ever existed.” It might still be improved. And just because Article V is unusable today does not mean that it will remain that way tomorrow.

When one of our keenest observers of constitutional law and politics speaks of a constitutional crisis in the United States, we would do well to pay attention. Sandy Levinson defines the concept quite broadly: he sees a crisis not simply as a fundamental dispute about constitutional meaning or action, but rather as occurring whenever constitutional structures are unable to meet the exigencies of the day. In such moments, Levinson sees two unattractive choices: we can either develop (un-)constitutional workarounds that lead to pragmatic accommodation but may violate the fundamental law, or we can simply muddle through with patently inadequate institutions in the face of serious problems. The first approach risks the rule of law, the second saves the law at the expense of society.

Either way, the constitution is at risk. It either dies informally by workaround, as Richard Epstein asserts happened with the New Deal, or it dies formally by replacement, which my co-authors and I have shown occurs quite frequently around the world. Formal replacement of constitutions is costly and risky, and it is no guarantee of solving the problem that Levinson identifies. Because constitutions are mechanisms for identifying what the exigencies of the day actually are, countries that frequently replace constitutions may find that they become more crisis-prone. While one can point to many countries that have a history of constitutional replacement, few of them are stable democracies.

Levinson is clearly motivated by the current state of politics in the United States, and his examples are American. But the problem may even bigger than he thinks: Levinson implies that Madisonian constitutional design is itself a failure. Structurally designed constraints on political action, Levinson asserts, are doomed to lead to the Faustian bargain he describes. Madison’s scheme, setting interest against interest, was designed to slow down government. For Madison and the founders, the risks of tyranny inherent in speedy government action outweighed the risks of government that is too slow. But Levinson thinks the risks of inaction are greater than those from excessive action. This is a general point about constitutional design, with implications well beyond the United States.

It’s a tempting argument, but I am not convinced that the matter is so grave as to throw out baby Madison with the bathwater of present-day American politics. Consider some other countries’ experience with insufficient Madisonian checks. In Hungary, the Fidesz government of Viktor Orban exploited a moment of crisis and won a majority sufficient to amend the constitution, which they proceeded to do wholesale. With the explicit goal of establishing “illiberal democracy” they have attacked many neutral institutions in society. In Poland, elections in October brought into power a conservative majority which has proceeded to fire the constitutional court. The honorary speaker of the parliament stated “it is the will of the people, not the law that matters, and the will of the people always tramples the law.” It is precisely such sentiments that Madison sought to temper.

When one examines the presidential primary field in the United States today, I doubt there are Americans of any persuasion who do not see at least one candidate that they fear. Madisonian design, among other things, reassures us that there is little damage that President Trump or Cruz or Sanders could do, and this lowers the stakes of politics. In each era, the Madisonian vision has been challenged by reformers who want to change things more quickly than the scheme allows. And one must genuinely wonder whether, in an era of rapid technological and social change, we might get the balance wrong. Yet it is not obvious how quickly we ought to allow change to occur.

In many countries, two constitutional design solutions present themselves to Levinson’s Faustian bargain. With regard to Type 1 constitutional crisis, in which institutions give way to action, lower amendment thresholds might be advisable. To be sure, measuring amendment difficulty is a thorny task, and there is some evidence that actual rates of amendment are not responsive to particular amendment rules. Still, flexibility in the face of changing conditions will help a constitutional scheme to adjust to new challenges. And flexibility will help it to endure.

With regard to Type 2 crises, in which inaction prevails, most newly drafted constitutions have explicit emergency schemes that allow a country to deal with short-term crises. France recently declared its first state of emergency since 1961 in response to the horrific massacres in Paris. Carefully designed emergency clauses and explicit limitations clauses for constitutional rights are surely useful design options, which reduce the likelihood of a constitutional crisis as Levinson defines it because the constitution can bend without breaking.

Perhaps the deeper question is whether challenges now arise so frequently and unpredictably that we need to reduce barriers to quick action. If we could do so, we would have to calibrate the difficulty of amendment rule to the nature of the problem we are facing and the importance of the interest at stake. A truly functional and responsive constitutional scheme would recognize that viscosity is a design variable. But while we might wish to rework our constitutional scheme to allow such variable flexibility, any attempt to rewrite our fundamental rules would likely be hijacked by the same demagogues now dominating national discourse. This is a point Cass Sunstein pointed out in response to Levinson’s earlier book Our Undemocratic Constitution. The bottom line is that we may be condemned to constitutional crisis. And that might not be so bad.

First, I am extremely grateful for the thoughtful responses to my essay (and to the Cato Institute offering all of us this rich opportunity). I hope the following comments further a productive conversation not only among ourselves, but among the readers as well.

When I went to graduate school more than a half century ago, political science was generally dominated by those who emphasized the importance of “political culture” as against the centrality of political institutions. What this boiled down to, in many ways, was the view that constitutional forms really did not matter very much, if at all; a country blessed with what was called the right “civic culture” could operate effectively under practically any set of institutions. Concomitantly, a severely divided country probably could not find genuine stability whatever set of institutions might be proposed. Although, for a number of reasons, I think it is safe to say that contemporary political scientists pay more attention to the importance of institutional structures, it remains wise not to place complete faith in what has come to be called “constitutional design.” Culture is important.

I take it this is the underlying theme of Jacob Levy’s comments. It is surely the case that if one looks around the world, there are few truly encouraging examples of political institutions that are widely supported by relatively contented publics. Parliamentary regimes are faced with many of the same practical problems of governance as our own presidentialist one in terms of publics who feel increasingly alienated from the elites dominating their political systems. I have written about “our undemocratic Constitution”; a standard trope of reference to the European Union involves its purported “democratic deficit” that makes it impossible to accord genuine legitimacy to decisions made in the collective name of the EU.

And, of course, the United States is not currently threatened by significant secessionist movements, unlike the case in such fellow NATO members as Canada, Great Britain, Spain, and Belgium, let alone many other parts of the world. So even if it is correct to be depressed when one looks at contemporary American politics, it may be a mistake to emphasize the importance of our formal constitutional order. It is, as was suggested by many a half-century ago, simply epiphenomenal; the really important determinants of a polity lie in society, the economy, or, perhaps, the threats and challenges posed by the international system, including globalization. (Perhaps Marx was right after all!)

So Levy may be correct to chide me for engaging in a certain form of American exceptionalism, even if, in this case, it is critical rather than celebratory. If the dysfunctionalities and discontents are world-wide phenomena, then this necessarily suggests that my emphasis on the specific modalities of the American political system may be misplaced. Let me emphasize that I do not view the American constitutional system as a total explanation for our present problems, just as, incidentally, I am irritated by those who give undue credit to the Constitution for the undoubtedly impressive aspects of our history since its adoption in 1788. Correlation is not causation, and causal analysis is indeed immensely difficult. As a political scientist, I would be surprised if, say, the Constitution explained even 15–20% of the difficulties facing the polity at present. Moreover, we must be sensitive to what I would describe as interaction effects. It is almost certainly the case that the specific political institutions established by the Constitution take on additional importance, again for good and for ill, depending on what else might be occurring throughout the system. As with otherwise benevolent drugs, which can become potentially fatal if taken in the wrong combinations, so can given political institutions take on ominous possibilities when other symptoms present themselves in the body politic. Still, even far more empirically oriented political scientists than I can scarcely agree on the actual weight to be placed on specific institutional structures in given circumstances. We are all offering our “best guesses” rather than truly demonstrable evidence as to the costs or benefits of, say, the presidential veto or various forms of bicameralism.

Richard Albert seems in substantial agreement with the view that the United States Constitution is too hard to amend, and he offers an audacious proposal that certainly seems to exemplify the temptations of going beyond what most people would regard as the limits of the existing constitutional order in order to fulfill the instrumental purposes set out by the Preamble. His proposal that presidents should be able to supplant Congress as the proposer of constitutional change is similar to a suggestion offered by Yale Professor Bruce Ackerman, but Ackerman seemed to concede that it would require a formal constitutional amendment to legitimize such a change. Albert, on the other hand, seems more willing to accept a coup de main by an innovative president who would throw him or herself on what Publius in Federalist 40 called the “approbation of the people.” If a proposal were accepted by conventions of the states—and, incidentally, how many conventions would have to agree?—then that in itself would serve to legitimize the “illegal” process by which the proposal was made in the first place.

Beyond the obvious tensions produced by its seeming rejection of the requirements set out by Article V is the fact that presidents are unlikely to propose amendments that would weaken presidential authority itself. If one believes, as I have come to, that the presidential veto makes us far too much of a tricameral political system—or if one agree swith Gene Healy and others at the Cato Institute that presidents have taken on dangerously unilateral power with regard to a host of issues—then it seems almost quixotic to look to presidents for suitable reform.

Neither Levy nor Albert seems eager to offer a genuinely affirmative defense of the U.S. Constitution. Ginsburg, on the other hand, appears to me quintessentially American in apparently fearing above all the “tyranny of the majority” and therefore seeing far more merit than I do in the Madisonian system that is explicitly designed to make majority rule, practically speaking, as difficult to attain as is reasonably possible. (It used to be even more difficult, before, say, the 15^th, 17^th, and 19^th amendments, but none of those truly affected the number of veto points that make significant legislative innovation more difficult than is the case in almost any parliamentary system.) It would be foolish to deny the reality of majority tyranny; contemporary developments in Hungary and Poland especially should frighten anyone committed to liberal democracy or constitutionalism.

Perhaps, though, we could productively discuss what the “right number” of veto points is in a given polity, the number that I sometimes label to my students as the “Goldilocks point.” I do not in fact support unalloyed majority rule, where a majority at a single moment in time is privileged to do whatever it wants—the definition of parliamentary supremacy offered centuries ago by Blackstone. I, too, am American enough to want constraints. I have no desire for the United States, with its 320 million people spread across millions of square miles, to emulate the systems of, say, Israel or New Zealand, where a single Knesset or House of Representatives has almost limitless power. That being said, I do believe we have overinvested, so to speak, in restraints, with the consequence that ever-increasing numbers of Americans are justifiably alienated from the formal political system, including its electoral dimension, not only because of phenomena like gerrymandering and voter suppression, but also because at the national level—unlike the case in many American states—elections in fact decide far less than the naïve electorate might suppose. Thus the fury of the Republican right that their impressive victory in 2014 has turned out to be relatively inconsequential because the President can obviously veto any legislation (assuming it can get through Democratic filibusters in the Senate); as noted in my original posting, should Hillary Clinton win the next election, leftish voters will be equally frustrated to realize that there is no practical likelihood that she will be able to accomplish her domestic agenda insofar as it requires any congressional authorization rather than pushing the envelope of assertions of executive authority.  

Whether or not one must throw out the entire Madisonian baby is surely open to genuine debate. And the nature of specific “Goldilocks points” is equally open to hearty argument. This is why I continue to support a new constitutional convention, so that a productive debate can actually take place, ideally with the degree of courtesy and attention to competing arguments as is manifested in this particular exchange.

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.

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.

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.