the Constitution is crumbling

Juan Linz observed that only one presidential republic–a system in which the president is separately elected from the legislature–has survived over a long period (Linz 1990). That exception was the USA, but a lucky contingency may have prevented the collapse of our constitution, and that factor is now weakening.

In a presidential system, the executive branch and at least one legislative chamber can be controlled by different parties. The public assesses the president on the basis of overall economic performance (and peace). Therefore, the opposition in the legislature will be tempted to threaten to wreck the economy to extract massive concessions. If negotiations fail, the ensuing crisis will defeat the administration, while legislators will be less exposed to electoral damage.

Meanwhile, the president has incentives to use executive power (direct control over the bureaucracy and security services) to accomplish her or his goals despite the legislature. Either or both behaviors can destroy the constitutional system.

The contingent feature of US politics until the mid-1990s was the presence of at least three effective parties (Northern Democrats, Southern Democrats, and one or more flavors of Republicans) in Congress. A president could almost always build a majority coalition from two of these components–for better or worse.

Our fifty states also use presidential systems (with their governors acting like presidents). However, state policy is more constrained; a state legislature cannot directly wreck the economy. Also, 39 states currently have one-party governments, which avoids constitutional brinkmanship, although it leaves the majority unchecked. In any case, there are examples of Linz’s thesis in some states, such as North Carolina right now.

At the federal level, there have been clear signs of unfolding Linzian disaster since Congress split into effectively two national parties in the mid-1990s:

  • Government shutdowns due to failures to pass appropriations. There had been brief shutdowns before 1995, but the ones since then (Nov. 1995, 1995-6, 2013, Jan 2018, and 2018-19) represent 95.4% of all the time that the federal government has ever been closed due to inter-branch conflict. So far, this tactic has backfired on the opposition because the inconvenience and economic cost of a shutdown build gradually over time. Congress almost starts less popular than the president and may face mounting public opposition while the federal government is closed. However, in today’s even more polarized environment, a shutdown might benefit members of the opposition while wrecking the economy.
  • Refusal to raise the debt limit. The damage of a default would be immediate and could be catastrophic and permanent, although no one really knows what would happen. Because a crisis could wreck the administration’s prospects immediately, there would be no gradual increase in public opposition that might constrain Congress. So far, the US has not actually defaulted, in part because Obama conceded a great deal to Republicans to get the debt limit raised in 2011. It is not clear that Biden could do the same, even if he wanted to, because the House and Senate may lack the votes for any compromise bill that raises the debt ceiling. Failure to raise it would be a perfect example of a Linzian crisis, in which either the opposition destroys an administration or the president manages to ignore the law. (I happen to believe that the 14th Amendment provides a justification for ignoring the debt ceiling, but the economic effects of doing so are unknown, and Biden’s success would strengthen the executive in a way that Linz predicted.)
  • Impeachment: Three of the four House impeachment votes in US history have happened since 1995. One can make an argument for most, if not all, of these votes. Nevertheless, the frequent use of impeachment is an unmistakable sign of Linzian crisis.
  • Ignoring impeachment. Richard Nixon resigned to avoid an impeachment vote. But Clinton was impeached and gained popularity. Trump was impeached twice and is running for another term. Neutralizing the disgrace of a House impeachment vote weakens the Constitution.
  • Preventing a president from appointing any justices. When Senate Republicans blocked consideration of Obama’s nomination of Merrick Garland, we appear to have entered a new period in which a Democratic president can only appoint members of the Supreme Court while there is a Democratic majority in the US Senate. It is hard to see the Democrats allowing the next Republican president to appoint any justice while they hold a Senate majority. Then the rule will be: unified party control is a condition of appointing justices.
  • Executive unilateralism: All presidents, including George Washington, have enacted controversial policies by executive order. Some presidents before the 1990s were already notorious for unilateralism. Still, the 21st century offers plenty of examples. For instance, whatever you think of the policy merits or the legality of Biden’s student-loan-forgiveness decision, it is troubling that a president can envision only one path to address the chronically elevated cost of college: waiving existing loans under the authority of a law enacted shortly after 9/11 to deal with national emergencies. I don’t see this move as tyrannical–Biden’s lawyers found an authorizing statute, courts will decide whether he overreached, and the public can vote in 2024. But I do think that using emergency presidential powers to address a chronic issue is a symptom of a broken constitution.

Two alternative to my theory:

  1. It’s not the Constitution; it’s the Republicans. Because the GOP was always more hostile to government programs and has radicalized since 2000, that party has initiated the various steps that are undermining the system.

I can grant this point, although I am not absolutely sure it is correct. (Democratic presidents have acted unilaterally). However, assigning moral responsibility may be moot. We should predict factional behavior, in Madison’s sense (a “common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community”). A stable constitution must be able to handle factionalism, much as a stable website must be able to manage spammers and trolls. Even if the Republicans are the sole source of current strain, the weakness is real.

  1. No constitution can survive factional behavior. Political leaders must always exercise forbearance. In that case, the problem is not our constitutional design but the willingness of leaders (again, probably mostly Republicans) to abuse the rules. As Levitsky & Ziblatt (2019) write:

Think of democracy as a game that we want to keep playing indefinitely. To ensure future rounds of the game, players must refrain from either incapacitating the other team or antagonizing them to such a degree, that they refuse to play again tomorrow. If one’s rivals quit, there can be no future games. This means that although individuals play to win, they must do so with a degree of restraint. In a pickup basketball game, we play aggressively, but we know not to foul excessively—and to call a foul only when it is egregious. After all, you show up at the park to play a basketball game, not to fight. In politics, this often means eschewing dirty tricks or hardball tactics in the name of civility and fair play (pp. 113-114).

Refusing to raise the debt limit to pay for borrowing that you voted to authorize is a clear example of a hardball tactic, if not a dirty trick.

My whole career is staked on the importance of political culture. I believe citizens must develop values and skills for making decisions together and then choose representatives who can also govern responsibly. Thus I can agree that our current crisis arises from elites’ poor norms and habits and bad choices by voters. Still, as Levitsky & Ziblatt acknowledge,

Norms of forbearance are especially important in presidential democracies. As Juan Linz argued, divided government can easily bring deadlock, dysfunction, and constitutional crisis. Unrestrained presidents can pack the Supreme Court or circumvent Congress by ruling via decree. And an unrestrained Congress can block the president’s every move, threaten to throw the country into chaos by refusing to fund the government, or vote to remove the president on dubious grounds (p. 108).

In short, all constitutions have vulnerabilities, but they are not all equally fragile. The record of presidential republics is really quite poor, and I am pessimistic about ours. If we are very lucky, the current crisis might force the Biden Administration to ignore the debt ceiling, and doing so might not cause a deep recession. Then, negotiations about the regular budget might yield an acceptable agreement and might position Biden for reelection against Trump. But there are many ways this can go wrong.

Consistent with the text of the Constitution, our electoral system could be changed in several states or nationally. Proportional representation or ranked-choice voting should increase the number of parties represented in Congress (Simmons, Gutierrez & Transue 2022), thereby allowing presidents to build majority coalitions by negotiation and discouraging incumbents from practicing brinkmanship. It’s possible that electoral reform is the only alternative to writing a whole new constitution after we have experienced a sufficiently disastrous period under the current one.

Sources: Linz, Juan J. “The perils of presidentialism.” Journal of democracy 1.1 (1990): 51-69; Levitsky, Steven, and Daniel Ziblatt. How democracies die. Crown, 2019; Simmons, Alan James, Manuel Gutierrez, and John E. Transue. “Ranked-choice voting and the potential for improved electoral performance of third-party candidates in America.” American Politics Research 50.3 (2022): 366-378. See also: judicial activism when the legislative branch is broken; is our constitutional order doomed?; four perspectives on student debt forgiveness and are we seeing the fatal flaw of a presidential constitution?

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.