17 September 2008

Balkin & Levinson on 'Constitutional Crises'

Sanford Levinson (U Texas Law) and Jack Balkin (Yale) have posted 'Constitutional Crises' on SSRN (University of Pennsylvania Law Review 2009, forthcoming). This is the abstract:

In popular discussion, the term "constitutional crisis" is used to describe every kind of conflict, great and small. But we think we can give the idea greater analytical clarity, and in the process, make some important points about constitutional design.

The secret, we shall argue, is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly -- even if people strongly disagree with each other and threaten each other -- there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of crisis. In this essay we offer a typology of different types of constitution crises based on this insight.

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used -- or threatened -- in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task.

This is a very interesting addition to the growing literature on constitutional design, with obvious potential for application in comparative study. In fact, it could be argued that usefulness in cross-system studies would be a threshold test for the viability of the scheme of 'types' of crises identified by Balkin and Levinson. (There are a few references to Weimar Germany and Former Yugoslavia in the paper, but the bulk of the argument concerns the US).

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