It's Time to Acknowledge America’s Constitutional System is Broken and Begin Building a New One

Commentators and political figures are now engaged in heated debates about whether America is experiencing a constitutional crisis. I admire their fortitude and dedication to our Republic, but they miss the most important point.

The crisis has already arrived, showing that constitutional designs are failing. Rather than trying to defend the status quo, it is time to build new ways to institutionalize democracy and the rule of law. The difficulty of getting on with that work was illustrated on February 27 when Harvard Law School assembled a distinguished panel of experts to consider the question, “Is the U.S. experiencing a constitutional crisis?”

---

At the Harvard event, Professor Jeannie Suk Gersen even warned, "Employing phrases like ‘constitutional crisis’ without sufficient caution or knowledge of law and facts involved in the various cases… could help foster a confrontation where there isn’t one yet. ‘As people who care about the rule of law, I think that we need to think about our own participation in hastening its demise.’”

As the New Times reports, Dean Erwin Chemerinsky of the University of California, Berkeley, disagrees. “We are in the midst of a constitutional crisis right now,” he says. “There have been so many unconstitutional and illegal actions in…the Trump presidency. We never have seen anything like this.”

Sign up for The Fulcrum newsletter

The Times notes that Chemerinsky “ticked off examples of what he called President Trump’s lawless conduct: revoking birthright citizenship, freezing federal spending, shutting down an agency, removing leaders of other agencies, firing government employees subject to civil service protections and threatening to deport people based on their political views.”

“Systematic unconstitutional and illegal acts,” Chemerinsky concluded, “create a constitutional crisis.”

Writing in last week in The Hill, Jonathan Turley made fun of such talk. “It’s only March, and we have yet another declaration of a ‘constitutional crisis.’”

He was particularly scornful of “a letter from roughly 950 law professors, who generally refer to actions and policies implemented by President Trump as ‘beyond his constitutional or statutory authority.’” So — what happens,” he asks, “if the ‘experts hold a crisis and no one shows up?”

He answers, “After years of such claims, the perpetual crisis has left a dwindling number of people inclined to panic. Many have more pressing matters and have the same reaction as former Secretary of State Henry Kissinger: ‘There cannot be a crisis next week. My schedule is already full.’”

Other commentators urge patience and express confidence in the resilience of our political institutions. I am not persuaded.

As I see it, “the are-we or aren’t-we in a constitutional crisis” debate is like arguing about the right diagnosis after the patient has expired.

Catholic University’s John Kenneth Whitegets it right when he says, “The Constitution has already collapsed.” He makes clear that while this country retains the rhetoric and formal institutional arrangements that the Constitution outlines, it does not have much of the substance left.

“Federal officeholders,” White observes, “including the president, are required to swear or affirm they will ‘defend’ the Constitution. But for Trump and his compliant Republican colleagues, these are merely pro-forma pledges. For them, paying lip service to the Constitution means reciting words without meaning.”

Some resist White’s pessimism. As evidence, they point to growing public discontent with the Trump Administration and victories in the courts.

But as M. Gessen cautioned in her 2016 essay “Autocracy: Rules for Survival,” citizens should not “be taken in by small signs of normality.” And “Institutions will not save you.”

The constitution’s collapse has been a long time in the making. President Trump is simply razing an already hollowed-out structure.

As I wrote in 2017, “While we have been focused on partisan divides over government policy and personnel, an almost invisible erosion of the foundations of our political system has been taking place. Public support for the rule of law and democracy can no longer be taken for granted.” This seems even truer today.

According to a recent New York Times/Siena College poll, “A majority of American voters across nearly all demographics and ideologies believe their system of government does not work, with 58 percent of those interviewed…saying that the world’s oldest independent constitutional democracy needs major reforms or a complete overhaul.”

In addition, fundamental flaws in the constitutional system are made visible in the behavior of our elected representatives in Congress. Both parties are now less interested in ensuring that the separation of powers and checks and balances envisioned by the Framers work than being loyal followers of the president when he is a member of their political party.

White argues that without any formal constitutional change, “The presidential system created by the Founders has morphed into an American-style parliamentary system. Party line voting has become the norm in Congress.” Deference to the president is now so pervasive that even when the president says, “I alone can fix” America’s problems or is dismissive of the Congress itself and prefers rule by executive order, the majority party barely protests.

White notes that with the rise of “Donald Trump’s ‘Caesarean presidency,’ Republicans have been content to forfeit their constitutional responsibilities.” In addition, the amendment process, the Constitution’s mechanism of adapting to new realities, is so moribund that it cannot save the document or us.

Beyond these institutional breakdowns, in the age of social media and the attack on facts and expertise, America is now, as Jeffrey Rosen puts it, “Living James Madison’s Nightmare.”

“Madison’s worst fears of mob rule,” Rosen says, “have been realized—and the cooling mechanisms he designed to slow down the formation of impetuous majorities have broken….Twitter, Facebook, and other platforms have accelerated public discourse to warp speed, creating virtual versions of the mob.”

Anyone who uses social media knows that “Inflammatory posts based on passion travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media undermine it by creating bubbles and echo chambers in which citizens see only those opinions they already embrace.”

If we survive the current crisis, the first step on the road to recovery will involve acknowledging that the existing Constitution can neither cope with the new political and technological developments that have brought us to this moment nor prevent the rise of authoritarianism and tyranny. We must stop clinging to the belief that we can respond effectively to that crisis and emerge with the existing arrangements intact.

Only then can Americans get down to the hard work of imagining a constitution that can adapt and improve democracy and the rule of law. That imagining will also help inspire action and build alliances with millions of Americans who have been telling pollsters that they want radical change.

Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.