Democracy And Dysfunction

226 Pages·2019·0.795 MB·English

by  Sanford Levinson, Jack M. Balkin

Democracy anD Dysfunction

D E M O C R A C Y A N D
D Y S F U N C T I O N
sanforD Levinson
Jack m. BaLkin
The University of Chicago Press Chicago and London
The University of Chicago Press, Chicago 60637
The University of Chicago Press, Ltd., London
© 2019 by The University of Chicago
All rights reserved. No part of this book may be used or
reproduced in any manner whatsoever without written permission,
except in the case of brief quotations in critical articles and reviews.
For more information, contact the University of Chicago Press,
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Published 2019
Printed in the United States of America
28 27 26 25 24 23 22 21 20 19  1 2 3 4 5
isBn- 13: 978- 0- 226- 61199- 0 (cloth)
isBn- 13: 978- 0- 226- 61204- 1 (paper)
isBn- 13: 978- 0- 226- 61218- 8 (e- book)
Doi: https://doi.org/10.7208/chicago/9780226612188.001.0001
Library of Congress Cataloging-in-Publication Data
Names: Levinson, Sanford, 1941– author. | Balkin, J. M., author.
Title: Democracy and dysfunction / Sanford Levinson, Jack M. Balkin.
Description: Chicago; London: The University of Chicago Press, 2019. |
Essays on whether the United States is in a constitutional crisis and
what can be done if it is, taking the form of an epistolary
exchange between two constitutional law scholars. |
Includes bibliographical references and index.
Identifiers: Lccn 2018050984 | isBn 9780226611990 (cloth: alk. paper) |
isBn 9780226612041 (pbk: alk. paper) | isBn 9780226612188 (e-book)
Subjects: Lcsh: Constitutional law—United States. | Democracy—
United States. | United States—Politics and government—2017–
Classification: Lcc kf4552 .L483 2019 | DDc 342.73—dc23
Lc record available at https:// lccn.loc.gov/2018050984
♾ This paper meets the requirements of ansi/niso Z39.48-1992
(Permanence of Paper).
To Mark Graber
Hoping for peace—and for justice
To Stephen Griffin
Hoping for the restoration of trust

C O N T E N T S
introDuction 1
1 Do We Have a Dysfunctional Constitution? 7
septemBer 29, 2015 9
octoBer 12, 2015 15
octoBer 12, 2015 25
novemBer 1, 2015 35
2 Dysfunction and the Rise of Donald Trump 41
august 1, 2016 43
august 7, 2016 51
novemBer 26, 2016 63
DecemBer 3, 2016 67
3 Constitutional Crisis 83
feBruary 21, 2017 85
apriL 14, 2017 91
4 Constitutional Rot 103
June 18, 2017 105
June 24, 2017 117
august 29, 2017 129
5 Executive Power and Constitutional Dictatorship 139
octoBer 7, 2017 141
novemBer 6, 2017 151
6 Conclusions 167
January 1, 2018 169
January 5, 2018 191
Acknowledgments 205
Bibliography 207
Index 213
I N T R O D U C T I O N
This book began with an invitation for the two of us to speak about
the current problems of constitutional dysfunction in the United
States at a conference sponsored by the Indiana University Robert H.
McKinney School of Law in Indianapolis, held on November 6, 2015,
and entitled “Partisan Conflict, Political Structure, and Culture.”
We have been friends and coauthors for many years, and over the
course of our collaboration, we have edited two books and written
over twenty articles together. We still disagree about a few issues,
however, and one of them is constitutional reform. Rather than pre-
pare two separate essays, we decided to continue our collaboration
in a somewhat different form—an epistolary exchange, which would
allow us to explore each other’s positions and what we consider their
strengths and weaknesses.
Levinson has now written two books, Our Undemocratic Constitu­
tion (2006) and Framed: America’s 51 Constitutions and the Crisis of
Governance (2012), arguing that the American Constitution is out-
moded and undemocratic—and that Americans should take up the
example of the Founding Fathers. They should hold a new constitu-
tional convention or, at the very least, adopt a series of new constitu-
tional amendments. Although he does not reject the relevance of po-
litical culture, demographics, and contemporary media in explaining
our present discontents, he believes that we ignore the implications of
basic constitutional structures at our peril.
In his 2011 book Living Originalism, Balkin has argued that most
constitutional change in American history—especially from the twen-