Constitutional crises

University of Pennsylvania Law Review

Volumn 157, Issue 3, 2009, Pages 707-753

  Levinson, Sanford ^a   Balkin, Jack M ^b  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 64549143388     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (226)

1. 17 U.S. (4 Wheat.) 316, 407, 415 (1819).
2. NICCOLÒ MACHIAVELLI, DISCOURSES ON LIVY 95 (Julia Conaway Bondanella & Peter Bondanella trans., Oxford Univ. Press 1997) (1531),
3. Although the present Article focuses on the United States, there is a rich body of literature that looks at the concept of "crisis," constitutional or otherwise, in other countries. Notable examples include OREN GROSS & FIONNUALA NI AOLÁIN, LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE (2006),
4. and JOHN E. FINN, CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW (1991). For obvious reasons, many especially fine books have been generated by the history and aftermath of Weimar Germany.
5. See, e.g., PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997);
6. WILLIAM P. SCHEURMAN, BETWEEN THE NORM AND THE EXCEPTION: THE FRANKFURT SCHOOL AND THE RULE OF LAW (1994). An unusually valuable collection is WEIMAR: A JURISPRUDENCE OF CRISIS (Arthur J. Jacobson Sc Bernhard Schlink eds., Belinda Cooper trans., 2000).
7. Finally, mention should be made of Clinton Rossiter's classic, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES (1948).
8. A classic account, although supplanted by later scholarship, is JOHN FISKE, THE CRITICAL PERIOD OF AMERICAN HISTORY: 1783-1789 (Boston and New York, Houghton Mifflin & Co. 1888). It captures well the view of proponents of the new Constitution that there was a desperate need to replace the Articles of Confederation with the new Constitution.
9. See, e.g., THE LOUISIANA PURCHASE AND AMERICAN EXPANSION, 1803-1893 (Sanford Levinson & Bartholomew H. Sparrow eds., 2005).
10. HARRY V. JAFFA, CRISIS OF THE HOUSE DIVIDED: AN INTERPRETATION OF THE ISSUES IN THE LINCOLN-DOUGLAS DEBATES (Univ. of Chicago Press 1982) (1959).
11. Arthur Bester, The American Civil War as a Constitutional Crisis, 69 AM. HLST. REV. 327 (1964).
12. See, e.g., 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 99-119 (1998) (describing struggles over expulsion of southern senators and representatives, ratification of the Fourteenth Amendment, and the impeachment of Andrew Johnson).
13. The most exhaustive treatment of this election is CHARLES FAIRMAN, 7 THE OLIVER WENDELL HOLMES DEVISE: HISTORY OF THE SUPREME COURT OF THE UNITED STATES (Supp. 1988) (Paul A. Freund & Stanley N. Katz eds.).
14. Bob Herbert, In 2008, Bush v. Gore Reduzi, N.Y. TIMES, Sept. 22, 2007, at A15.
15. The Constitution provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." U.S. CONST, art. II, § 1, cl. 2 (emphasis added).
16. For an illuminating analysis, see Richard L. Hasen, When "Legislature" May Mean More than "Legislature": Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 HASTINGS CONST. L.Q. 599, 600-01 (2008). Professor Hasen argues that one could read "legislature" to refer to a particular state's "legislative process," which can include popular initiative and referendum, rather than the particular institution called "a state legislature."
17. JOHN G. ROBERTS, 2006 YEAR-END REPORT ON THE FEDERAL, JUDICIARY 1 (2006), available at http://www.supremecourtus.gov/publicinfo/year-end/2006year-endreport.pdf.
18. Id.
19. See, e.g., Sanford Levinson, Response, The Deepening Crisis of American Constitutionalism, 40 GA. L. REV. 889 (2006).
20. Keith E. Whittington, Yet Another Constitutional Crisis?, 43 WM. & MARY L. REV. 2093, 2094 nn.2-3 (2002).
21. See generally THEODORE DRAPER, A VERY THIN LINE: THE IRAN-CONTRA AFFAIRS (1991).
22. See generally MICHAEL A. GENOVESE, THE WATERGATE CRISIS (1999).
23. Eric Lomazoff, More than Just "Alliterative Crunch"? Examining Newspaper Use of the Term "Constitutional Crisis" in Modern American History 25 (Jan. 2004) (unpublished manuscript, on file with authors).
24. To be sure, they might produce acts of civil disobedience-consider the abortion clinic bombings of the 1980s as an example. However, these do not constitute constitutional crises unless the violence becomes far more widespread.
25. United States v. Nixon, 418 U.S. 683 (1974); see also, e.g., President's Statement About Disclosure, N.Y. TIMES, Aug. 6, 1974, at 69 (noting that the President was making certain tapes available to the House Judiciary Committee).
26. R.W. Apple Jr., Nixon Contests Subpoenas, Keeps Tapes; Hearing Set Aug. 7 on Historic Challenge, N.Y. TLMES1JuIy 27, 1973, at 1;
27. see also Philip Shabecoff, St. Clair Silent on Obeying Court, N.Y. TIMES, JuIy 23, 1974, at 1 (quoting Nixon's attorney as saying, "I don't see how [Nixon] can [decide whether to obey] until he gets the decision, reads the opinion and consults with counsel.").
28. Excerpts from Interview with Nixon About Domestic Effects of Indochina War, N,Y. TIMES, May 20, 1977, at 16.
29. See, e.g., JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 114 (2007) ("[T]he president's enemies ratcheted up the [Monica Lewinsky] controversy into a constitutional crisis.").
30. See U.S. CONST, art. II, §4.
31. Petition for Writ of Certiorari at 12, Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000) (No. 00-0836), 2001 WL 34117432. Judge Richard Posner offers a version of this argument in his vigorous defense of the Court's intervention.
32. See RICHARD POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS 141-45 (2001) (warning of the "partisan wrangling," "free-for-all," and legitimacy concerns that would have resulted "had the Supreme Court not intervened").
33. See Bush v. Gore, 531 U.S. 98 (2000) (per curiam) (resolving the controversy by halting a recount ordered by the Florida Supreme Court).
34. See Richard L. Berke & Katharine Q. Seelye, An End to a Quest: Vice President Offers to Aid Bush but Admits Disappointment, N.Y. TIMES, Dec. 14, 2000, at Al.
35. See Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991 (2008).
36. See THE AMERICAN HERITAGE DICTIONARY 328 (3d ed. 1993).
37. For an excellent discussion of different understandings of the term, see Whittington, supra note 15, at 2097-98.
38. Throughout our discussion we assume that the participants understand that they are facing a crucial moment. One can, of course, engage in retrospective analysis and argue that decisions blithely accepted should have been recognized as "crises" but that nobody recognized this at the time,
39. Indeed, as we note, see infra text accompanying note 124, one might surmise that federal political systems are more prone to constitutional crises precisely because almost by definition such systems have the central task of maintaining a union of what may be quite diverse subnational entities. Moreover, the existence of a strong form of federalism may both invite, and institutionally make much easier, that particular crisis known as secession.
40. See Sanford Levinson, Is Secession the Achilles Heel of 'Strong'Federalism?, in PATTERNS OF REGIONALISM AND FEDERALISM: LESSONS FOR THE UK 207 (Jörg Fedtke & Basil S. Markesinis eds., 2006).
41. Of course, if government officials prove inadequate to meet the emergency, power struggles and crisis may follow. One reason offered for the inadequate response of the Bush administration during Hurricane Katrina was the administration's ostensible respect for federalism and the prerogatives of the Louisiana Governor regarding control of the National Guard. If that were truly so, it would be an example of what we will describe as a type two crisis, where fidelity to the Constitution leads to disaster. It is also possible that doing nothing out of respect for federalism can be a way of placing responsibility (and therefore blame) on the shoulders of others.
42. See Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, 122 Stat. 3765.
43. James G. Randall's famous book, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (rev. ed. 1951), discusses, for the most part, problems of claimed overreach by an energetic executive in time of war. But they were "constitutional problems" only when one views them from the standpoint of another constitutional actor who disputed the executive's asserted powers.
44. Of course, from Lincoln's perspective, suspending habeas was not overreach but simply the performance of his constitutional duties to save the Union, comparable to his undoubted powers as Commander-in-Chief to replace McClellan with someone he deemed a more effective general.
45. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819).
46. Conversely, there can be a constitutional crisis (what we call type two) if people do not try to adapt the constitutional system to meet serious problems.
47. Consider, for example, the language used by the New York Times in reaction to Eliot Spitzer's momentary delay in leaving the New York governorship in the wake of a sex scandal.
48. See Danny Hakim & William K. Rashbaum, State in Limbo as Questions Swirl About Spitzer's Future, N.Y. TIMES, Mar. 11, 2008, http://www.nytimes.com/2008/03/ 11/nyregion/11 cnd-spitzer.html. A state of political limbo may be tolerable if it is relatively brief and there are no emergencies that require a governor to act; in other circumstances, however, it may cause serious problems for the state.
49. See, e.g., RONALD P. FORMISANO, FOR THE PEOPLE: AMERICAN POPULIST MOVEMENTS FROM'THE REVOLUTION TO THE 1850S, at 160-176 (2008); MARVIN E, GETTLEMAN, DORR REBELLION (1973).
50. Indeed, the very first paragraph of Marshall's rhetorical tour de force evokes the potential presence of crisis: "[The dispute between Maryland the United States Bank] must be decided peacefully, or remain a source of hostile legislation, perhaps, of hostility of a still more serious nature ...." McCulbch, 17 U.S. (4 Wheat.) at 400-01.
51. See, e.g., James Madison, Speech in Congress Opposing the National Bank (Feb, 2,1791), in JAMES MADISON: WRITINGS 480 (Jack N. Rakove ed., 1999). An edited version of the speech is available in PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 28-32 (5th ed. 2006).
52. RICHARD E. ELLIS, AGGRESSIVE NATIONALISM: MCCULLOCH V. MAHYIAND AND THE FOUNDATION OF FEDERAL AUTHORITY IN THE YOUNG REPUBLIC 40 (2007). Only a few "Old Republicans" continued to challenge the legitimacy of the Bank. And, interestingly enough, the defense of the Bank was based far more on its general utility than as a "necessary and proper" response to a state of emergency: it was widely believed that American recovery from the ravages of the War of 1812 would be facilitated by the Bank.
53. See id. at 37-38.
54. Taxation, of course, was one of the most fundamental attributes of sovereignty. To be sure, the Constitution explicitly limited that power with regard to taxes on imports and exports. See U.S. CONST, art. I, § 10, cl. 2, although one might infer from this explicit exclusion that sovereign states otherwise presumptively retained their rights of taxation.
55. McCulloch, 17 U.S. (4 Wheat.) at 327. Marshall did not note that the prohibition of the power to tax can also operate as an implicit destruction of a political entity that depends on tax revenues for its survival; nor, as Ellis demonstrates, did he even come close to explaining exactly why a congressional charter turned an eighty-percentprivately owned, profit-seeking bank into an instrument of the national government.
56. See ELLIS, supra note 43, at 106.
57. 22 U.S. (9 Wheat.) 738 (1824).
58. See PETER IRONS, JUSTICE AT WAR 133 (1983) (describing disagreement on the ACLU board about the President's policies).
59. See id. at 53 (discussing Biddle's meeting with the President on February 7, 1942).
60. See Korematsu v. United States, 323 U.S. 214, 225-33 (1944) (Roberts, J., dissenting);
61. id. at 233-42 (Murphy, J., dissenting);
62. id. at 242-48 (Jackson, J., dissenting).
63. See IRONS, supra note 47, at 128-34 (detailing the series of events that led to the internment of Japanese-Americans after Pearl Harbor).
64. See id. at 40, 61.
65. It is not even clear that the Japanese internment is now regarded in retrospect as a constitutional crisis, despite the fact that the United States, through legislation signed by President Ronald Reagan, formally apologized and gave symbolic financial reparations to the victims of the injustice. See Act of Aug. 10, 1988, Pub. L. No. 100-383, § 2, 102 Stat. 903, 903-04 (describing the internment as motivated by "racial prejudice, wartime hysteria, and a failure of political leadership"). One of us (Levinson) was at a conference at the University of Chicago some years ago at which former Attorney General Edwin Meese was a participant addressing limits, if any, on the national government in addressing national security threats. Responding to Levinson's question from the audinceabout the meaning of President Reagan's willingness to sign the congressional statute that apologized and provided reparations, Meese emphasized that at most it was a recognition that an injustice was done to the victims of the detention, not an admission that Korematsu had been wrongly decided as a constitutional matter.
66. Whittington calls these crises of "fidelity." See Whittington, supra note 15, at 2109-10 ("Crises of constitutional fidelity arise when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions." (footnote omitted)).
67. THE FEDERALIST NO. 40, at 264, 266 (James Madison) (Jacob E. Cooke ed., 1961).
68. See ROSSITER, supra note 3, at 15 ("Nowhere in all history has the belief that a constitutional state can alter its pattern of government temporarily in order to preserve it permanently been more resolutely asserted and successfully proved than it was in the storied Republic of ancient Rome.").
69. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 393 (Peter Laslett ed., 1963) (1690) (emphasis added). It is worth comparing Locke's theory of prerogative to Machiavelli's approving discussion of the Roman dictatorship.
70. See supra text accompanying note 2. What Machiavelli admired about the dictatorship was precisely what distinguished it from Locke's prerogative power. The Roman dictatorship was institutionalized, requiring a particular process before the dictatorship could begin and ending it at a specified time. Naming a dictator might signal an emergency, but by definition, it did not constitute a "constitutional crisis" precisely because the Roman Constitution provided for the institution. What concerned the republican theorist Machiavelli was the rise of an extraconstitutional dictatorship in cases where the constitution lacked a procedure for appointing a dictator and ending the dictator's reign.
71. THE FEDERALIST NO. 41, at 270 (James Madison) (Jacob E. Cooke ed., 1961) (emphasis added),
72. CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE THEORY OF SOVEREIGNTY 13 (George Schwab trans., 1985) (1922), quoted in Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 GA. L. REV. 699, 721 (2006).
73. GIORGIO AGAMBEN, STATE OF EXCEPTION 2 (Kevin Attell trans., 2005).
74. For potential corroboration of Agamben's descriptive point, see GROSS & NÍ AOLÁIN, supra note 3.
75. See also Kim Lane Scheppele, The Migration of Anti-Constitutional Ideas: The Post9/11 Globalization of Public Law and the International State of Emergency, in THE MIGRATION OF CONSTITUTIONAL. IDEAS 347 (Sujit Choudry ed., 2006);
76. Kim Lane Scheppele, Small Emergencies, 40 GA. L. REV, 835 (2006);
77. Kim Lane Scheppele, North American Emergencies: The Uses of Emergency Powers in Canada and the United States, 4 INT. J. CON L. 213 (2006).
78. 2 BENJAMIN ROBBINS CURTIS, A MEMOIR OF BENJAMIN ROBBINS CURTIS, LL.D. 306-35 (Benjamin R. Curtis ed., Boston, Little, Brown & Co. 1879),
79. reprinted in BREST ETAL., supra note 42, at 280-81.
80. For an explication of the Bush administration's theory, see JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005);
81. for criticism by a former Bush administration insider, see JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION (2007).
82. For considerably more vehement criticism, see ERIC LICHTBLAU, BUSH'S LAW: THE REMAKING OF AMERICAN JUSTICE (2008);
83. CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY (2007).
84. Letter from Thomas Jefferson to John B. Colvin (Sept. 20, 1810), reprinted in 4 THE FOUNDERS' CONSTITUTION 127,127 (Philip B. Kurland & Ralph Lerner eds., 1987).
85. DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 24546 (1994).
86. See id. at 250 (quoting Jefferson as saying that "the less that is said about the Constitutional difficulties, the better"),
87. Letter from Pres. Abraham Lincoln to Sen. Albert Hodges (Apr. 4, 1864), reprinted in ABRAHAM LINCOLN: SPEECHES AND WRITINGS 1859-1865, at 585, 585 (1989),
88. quoted in Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257,1266(2004).
89. Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting);
90. see also RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006).
91. U.S. CONST, art. II, § 1, cl. 1,
92. Id. art. I, §1, cl. 1.
93. For federal judges, see, most notably, Hamdi v. Rumsfeld, 542 U.S. 507, 579-99 (2004) (Thomas, J., dissenting), arguing that the President acted within his constitutional power.
94. For law professors, see YOO, supra note 61.
95. Perry v. United States, 294 U.S. 330 (1935);
96. Nortz. v. United States, 294 U.S. 317 (1935);
97. Norman v, Baltimore & Ohio R.R., 294 U.S. 240 (1935),
98. See KEITH WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL. SUPREMACY 3738 (2007) (noting that Roosevelt had a speech drafted quoting Lincoln's statement that the Supreme Court could not unilaterally decide questions of vital importance),
99. 317 U.S. 1 (1942).
100. See WILLIAM O. DOUGLAS, THE COURT YEARS: 1939-1975, at 139 (1980) (reporting that Attorney General Francis Biddle had told members of the Court that Roosevelt "would simply not tolerate any delay" and the Army would "go ahead and execute the men whatever the Court did").
101. For extensive discussions of Roosevelt's policies meant to aid Britain, see, for example, ROBERT JACKSON, THAT MAN: AN INSIDER'S PORTRAIT OF FRANKLIN D. ROOSEVELT 82-110 (John Q. Barrett ed., 2003);
102. Arthur M. Schlesinger, Jr., War and the Constitution: Abraham Lincoln and Franklin D. Roosevelt, in LINCOLN, THE WAR PRESIDENT 145, 162-65 (Gabor S. Boritt ed., 1992). Schlesinger concedes the "strained" nature of Jackson's opinion as Attorney General approving the legality of Lend-Lease, which was based on statutory construction and not on any notion of inherent powers as Commander-in-Chief. He defends Roosevelt's action far more as "a defensible application of the Locke-Jefferson-Lincoln doctrine of emergency prerogative" than as a scrupulous adherence to constitutional niceties,
103. Id. at 164;
104. see also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941, 1043-1051 (2008) (discussing the Roosevelt administration's legal justifications).
105. WILLIAM STEVENSON, A MAN CALLED INTREPID 254 (1976).
106. We are indebted to University of Minnesota professor Heidi Kitrosser for asking about the possibility of "secret" constitutional crises.
107. See U.S. ART. CONFED. art. XIII (1778).
108. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 342 (Max Farrand ed., 1937).
109. Id. at 283 (emphasis added).
110. U.S. ART. CONFED. art. XIII (1778).
111. Id.
112. See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 25-38 (2005) (arguing that if the Articles of Confederation had ceased to apply, then there was no "illegality" occurring in Philadelphia or in the subsequent ratification process).
113. See 2 ACKERMAN, supra note 8, atch. 2.
114. Id. at 110-13.
115. See id.
116. This characterization may be unfair to Cromwell and his supporters, because they argued vigorously that King Charles was in violation of the tacit "constitution" that limited the power of the monarch particularly with regard to the exaction of taxes. See MARK KISHLANSKY, A MONARCHY TRANSFORMED 192 (1996) ("[W]hile his political allegiances oscillated unpredictably, his basic beliefs held steady. His defense of the security of property was absolute and brought him into conflict with the King ....") ;
117. see also HENRY PARKER, THE CASE OF SHIPMONY BRIEFLY DISCOURSED (n.p. 1640) (arguing against ostensibly royal taxation).
118. Whittington calls these "operational crises." Whittington, supra note 15, at 2101.
119. Not all difficulties with the Constitution rise to the level of serious threats to the constitutional system. Many features of our constitutional system are inconvenient or unfair, but they do not threaten the continuation of the Constitution or the nation. The Twenty-Second Amendment prevents competent Presidents from serving a third term, even in time of war or national danger. See U.S. CONST, amend. XXII. The Natural Born Citizen Clause of Article II keeps talented persons from serving as President.
120. See id. art. II, §1, cl. 5. The equal representation of states in the Senate biases national policy away from the interests of majorities.
121. See id. art. I, §3, cl. 1. The Electoral College skews how presidential candidates run campaigns and how they govern in pursuit of reelection.
122. See id. art. II, §1, amended by U.S. CONST, amend. XII. The rules for picking Presidents and Vice Presidents if the electoral college does not produce a winner are convoluted and could someday lead to political stalemate and what we call a type three crisis.
123. See id. amend. XII. Finally, the amendment provisions of Article V are very difficult to meet and could prove useless in an emergency, These features of the Constitution may be unwise, even "stupidities."
124. See generally CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES (William N. Eskridge, Jr. & Sanford Levinson eds., 1998). But they do not by themselves create a type two crisis. Nevertheless, as we discuss below, various features of the Constitution can prove dysfunctional in context and create crisis if circumstances change sufficiently, If these circumstances were predictable in advance, we could say that the crisis was "latent." As we shall discuss more fully, the seeds of a constitutional crisis can exist for many years in the background of political life, becoming salient only when events demonstrate that the existing constellation of political forces is inadequate to meet the needs of everyday governance. When this happens, crisis seems to emerge suddenly. But, in fact, the causes of the current difficulty may have been set in motion long ago. These latent or hidden crises are the greatest test of a constitutional system, and they are of the utmost importance to students of constitutional design.
125. The type two crisis was prolonged and exacerbated by the long but constitutionally required hiatus between the November election and the March inauguration. It is worth noting that although Lincoln disagreed with Buchanan about whether the Constitution allowed the President to resist secession, he did not suggest that he could take office earlier than March 4 even though he no doubt believed that Buchanan's scruples were literally destroying the Union. Nor, seventy years later, would Franklin Roosevelt argue that he should take office early because of the exigencies of the Great Depression. As a matter of fact, the Twentieth Amendment made Roosevelt's the last inauguration to take place on March 4-it now occurs on January 20. See U.S. CONST, amend. XX. Even so, the present hiatus of "only" ten weeks between Election Day in November and the inauguration in January may still be too long in some circumstances.
126. BREST ET AL., supra note 42, at 264 (quoting Buchanan's 1860 State of the Union address).
127. Letter from Abraham Lincoln, President of the U.S., to Orville H. Browning, U.S. Senator (Sept. 22, 1861), reprinted in ABRAHAM LINCOLN: SPEECHES AND WRITINGS 1859-1865, supra note 65, at 268, 268-69.
128. See U.S. CONST, art. I, §2, cl. 3, amended by U.S. CONST, amend. XIV, §2.
129. See GARRY WILLS, "NEGRO PRESIDENT": JEFFERSON AND THE SLAVE POWER 49 (2003) ("It became clear in retrospect that the election of 1800 was a great tipping point in American history, signaling the demise of Federalist domination of the government and the advent of Republican rule.").
130. DON E. FEHRENBACHER, THE SLAVEHOLDING REPUBLIC (Ward M. McAfee ed., 2001).
131. See MARK A. GRABER, DRED SCOTT ANDTHEPROBLEM OF CONSTITUTIONAL EVIL 35-36 (2006) (describing this phenomenon in congressional contests over slavery in the 1850s).
132. See id. at 36 ("The very structure of the national legislature during the 1850s ... practically guaranteed that Congress would be the worst imaginable site for securing a broad-based agreement on slavery policies.").
133. See, e.g., Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 CHI.-KENT L. REV. 49, 80-81 (2007) (noting that historical consequences of the Dred Scott decision cut in more than one direction).
134. Abraham Lincoln, "House Divided" Speech at Springfield, 111. (June 16, 1858), in ABRAHAM LINCOLN: SPEECHESAND WRITINGS 1832-1858, at 426, 426 (1989).
135. See BREST ET AL., supra note 42, at 268 (noting that Lincoln never challenged the legal legitimacy of slavery in already existing states).
136. Consider Lincoln's statements in his debates with Stephen Douglas: Now on what ground would a member of Congress who is opposed to slavery in the abstract vote for a fugitive law, as I would deem it my duty to do? Because there is a Constitutional right which needs legislation to enforce it. And although it is distasteful to me, I have sworn to support the Constitution, and having so sworn I cannot conceive that I do support it if I with held from that right any necessary legislation to make it practical. Abraham Lincoln, Reply to Sen. Stephen A. Douglas in Their Third Debate (Sept. 15, 1858), in ABRAHAM LINCOLN: SPEECHES AND WRITINGS 1832-1858,
137. supra note 98, at 620;
138. see also Abraham Lincoln, Reply to Sen. Stephen A. Douglas in Their Seventh Debate (Oct. 15, 1858), in ABRAHAM LINCOLN: SPEECHES AND WRITINGS 1859-1865,
139. supra note 65, at 813 ("Why then do I yield support to a fugitive slave law? Because I do not understand that the Constitution, which guarantees that right, can be supported without it.").
140. Part I of the Constitution Act, 1982, §4(2), being Schedule B to the Canada Act 1982, ch. 11 (U.K.), as reprinted in R.S.C., No. 44 (Appendix II 1985).
141. DAVID HERBERT DONALD, LINCOLN 529 (1995).
142. id.
143. See MICHAEL LIND, WHAT LINCOLN BELIEVED ch. 5 (2004) (discussing Lincoln's determination to stop what he saw as the illegal secession of states from the Union).
144. See supra text accompanying note 79.
145. See BURRUS M. CARNAHAN, ACT OF JUSTICE: LINCOLN'S EMANCIPATION PROCLAMATION AND THE LAW OF WAR 126 (2007) ("McClellan had always disagreed with the Emancipation Proclamation, and if he became president that document would be either withdrawn or ignored.").
146. See U.S. CONST, amend. XXV, §4 (providing that the Vice President and a majority of the Cabinet may remove the President from power upon finding that the President is unable to "discharge the powers and duties of his office").
147. See DAVID PLETRUSZA, 1920: THE YEAR OF THE SIX PRESIDENTS 47-54 (2007) (describing Wilson as "pitiably weak," but still "feisty and combative," in the months following his stroke).
148. If a constitution has a robust "emergency powers" provision that allows for its own suspension upon the declaration of "states of emergency," then one might wonder if there would ever be either type one or type two crises; the existing constitution itself would recognize that normal processes can sometimes be dysfunctional and provide a solution (even if some people might describe the solution-a declaration of constitutional suspension-as the equivalent of jumping from the frying pan into the fire). This, of course, was the point of the Roman (temporary) dictatorship. Many modern constitutions, like those of France, Germany, India, and Turkey, have emergency or suspension clauses.
149. See 1958 CONST, art. 16. (Fr.); GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Federal Constitution] art. 91 (F.R.G.);
150. INDIA CONST, pt. XVIII; TURKEY CONST, art. XV. Ours, quite notably, does not, save for the possibility of suspending the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it." U.S. CONST, art. I, § 9, cl. 2.
151. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988).
152. See Sanford Levinson, "Veneration" and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment, 21 TEX. TECH L. REV. 2443 (1990).
153. ERIC LANE & MICHAEL ORESKES, THE GENIUS OF AMERICA: HOW THE CONSTITUTION SAVED OUR COUNTRY-AND WHY IT CAN AGAIN 196 (2007).
154. See supra text accompanying note 89.
155. I WILLIAM FREEHLING, THE ROAD TO DISUNION: SECESSIONISTS AT BAY, 17761854, at 509-10 (1990).
156. This marks an important difference between our typology and Whittington's. Whittington distinguishes between "crises of fidelity" and "operational crises," roughly corresponding to what we call type one and type two crises. See Whittington, supra note 15, at 2100. We think, however, that among the most interesting examples of crises are type three, where the question of fidelity is seriously in doubt. Two (or more) sides of a constitutional controversy struggle for dominance and over whose vision of the Constitution will prevail. The winner's interpretation becomes the accepted conventional wisdom about the meaning of the Constitution, leading to what one of us (Balkin) has called a "Winner's Constitution."
157. See Posting of Jack M. Balkin to Balkinization, Winner's Constitutions, http://balkin.blogspot.com/2007/06/winners-constitutions.html (June 7, 2007). Whittington does not regard these as either crises of fidelity or crises of operation because "interpretive disagreement still implies a commitment to interpreting a specific constitution, and to constitutional fidelity."
158. Whittington, supra note 15, at 2111 n. 67.
159. We think this leaves out an important category of constitutional struggles for power, in which each side sees the other as precipitating what Whittington calls a "crisis of fidelity," but in fact there are plausible arguments on both sides. It is not accidental that because Whittington does not regard what we call type three crises as crises of fidelity, he regards constitutional crises as "extraordinarily rare" in American history, id. at 2095, whereas we see them as somewhat more frequent.
160. Mark Tushnet, Constitutional Hardball, 37 J. MARSHALLL. REV. 523 (2004).
161. By contrast, Bruce Ackerman believes that America's three major "constitutional moments" all involved transgression of the existing constitutional order. See 2 ACKERMAN, supra note 8, at 7 (identifying the Founding, Reconstruction, and the Great Depression as "crucial transformative periods" that involved the creation of "new constitutional meanings").
162. See Posner & Vermeule, supra note 28, at 997 ("[A] constitutional showdown is (1) a disagreement between branches of government over their constitutional powers that (2) ends in ... acquiescence by one branch in the view of the other and that (3) creates a constitutional precedent.").
163. See BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS 30-35 (2005) (describing the history of the deadlocked election of 1800).
164. See WILLIAM W. FREEHLING, PRELUDE TO CIVIL WAR: THE NULLIFICATION CONTROVERSY IN SOUTH CAROLINA, 1816-1836, at 260-97 (1965).
165. See generally RICHARD E. ELLIS, THE UNION AT RISK: JACKSONIAN DEMOCRACY, STATES' RIGHTS, AND THE NULLIFICATION CRISIS (1987).
166. See, e.g., KENNETH M. STAMPP, AND THE WAR CAME: THE NORTH AND THE SECESSION CRISIS, 1860-1861 (1950).
167. See, e.g., 2 ACKERMAN, supra note 8, at chs. 4-8.
168. See, e.g., C. VANN WOODWARD, REUNION AND REACTION: THE COMPROMISE OF 1877 AND THE END OF RECONSTRUCTION ( 1951 ) ;
169. see also KEITH IAN POLAKOFF, THE POLITICS OF INERTIA: THE ELECTION OF 1876 AND THE END OF RECONSTRUCTION (1973),
170. See ELIZABETH JACOWAY, TURN AWAY THY SON: LITTLE ROCK, THE CRISIS THAT SHOCKED THE NATION (2007).
171. See, e.g., ACKERMAN, supra note 119, at 3 ("The Republican governors of Pennsylvania and Virginia were preparing
172. 410 U.S. 113 (1973).
173. For an example of a state law challenging Roe, see, for example, Monica Davey, South Dakota Bans Abortion, Setting up a Battle, N.Y. TIMES, Mar. 7, 2006, at Al.
174. For examples of local school boards clashing with the Supreme Court's school-prayer decisions, see, for example, Peter Applebome, Prayer in Public Schools? It's Nothing New for Many, N.Y. TIMES, Nov. 22, 1994, at Al;
175. Neela Banerjee, School Board to Pay in Jesus Prayer Suit, N.Y. TIMES, Feb. 28, 2008, at Al 5.
176. An early book examining the gap between law on the books and law in action is KENNETH M. DOLBEARE & PHILLIP E. HAMMOND, THE SCHOOL PRAYER DECISIONS: FROM COURT POLICY TO LOCAL PRACTICE (1971). The most recent Supreme Court case involving school prayer is Santa Fe Independent School District v. Dot, 530 U.S. 290 (2000), which struck down school policy as a violation of the Establishment Clause. As the Banerjee article suggests, there is no particular reason to believe that Santa Fe has brought an end to what courts would deem unconstitutional practices with regard to school prayer.
177. See STANLEY l. KUTLER, WARS OF WATER GATE 406-11 (1992).
178. See Carroll Kilpatrick, President Abolishes Prosecutor's Office; FBI Seals Records, WASH. POST, Oct. 21, 1973, at Al (noting Attorney General Richardson's assurances on behalf of the administration to respect the independence of the Special Prosecutor).
179. See Sanford Levinson, Shards of Citizenship, Shards of Sovereignty: On the Continued Usefulness of an Old Vocabulary, 21 CONST. COMMENT. 601, 602 n.6 (2004) (book review) (referring to "the jurisprudential (and perhaps constitutional) crisis" generated by the Bush administration's invocation of executive power).
180. See Pub. L. No. 109-366, 120 Stat. 2600 (authorizing "trial by military commission for violations of the law of war").
181. See Pub. L. No. 110-55, 121 Stat. 552 (codified in scattered sections of 50 U.S.C.) (amending the Foreign Intelligence Surveillance Act of 1978 to provide additional procedures for foreign intelligence acquisition).
182. See Foreign Intelligence Service Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified in scattered sections of 18 and 50 U.S.C).
183. See generally ROSSITER, supra note 55 (discussing how dictatorship can arise in constitutional democracies during periods of extreme national emergency).
184. Perhaps a few enthusiastic supporters of the administration would concede the presence of a type one crisis inasmuch as they concede that the President, because of overarching emergencies, has exercised his extralegal prerogative power. One supporter of extralegal power in times of crisis has stated that [t]o counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extralegal force. Harvey Mansfield, The Law and the President, WKLY. STANDARD. Jan. 16, 2006, at 12,12.
185. See Bush v. Gore, 531 U.S. 98, 110 (2000) (holding that the recount of votes in Florida was unconstitutional).
186. See Burke & Seelye, supra note 27.
187. See U.S. COMM'N ON CIVIL RIGHTS, VOTING IRREGULARITIES IN FLORIDA DURING THE 2000 PRESIDENTIAL ELECTION 99 (2001) (reporting statistical and anecdotal evidence of disenfranchisement that occurred as a result of improper voting practices).
188. SeeYoungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89 (1952) (holding that Truman's seizure of private steel mills was beyond his executive power).
189. See generally MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE (1977) (analyzing the impact of Youngstown on separation of powers and executive authority).
190. See THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 1111 (Kermit L. Hall ed., 2d ed. 2005) ("The president immediately gave Congress formal notice of his action, but Congress took no action.");
191. WILLIAM M. WLECEK, 12 THE OLIVER WENDELL HOLMES DEVISE: HISTORY OF THE SUPREME COURT OF THE UNITED STATES 388 (2006) (Stanley N. Katz ed.) (noting Truman's belief that "a strike induced interruption in the production of steel would imperil production of defense matériel").
192. See U.S. CONST, art. I, §4 (providing that Congress is only required to meet once a year, in December), amended by U.S. CONST, amend. XX, §2 (providing that Congress shall assemble on the third day of January).
193. Proclamation Calling Militia and Convening Congress (Apr. 15, 1861), available at http://www.whitehousehistory.org/04/subs/activities-03/c02- 02.html (last visited Jan. 15,2009).
194. ROSSITER, supra note 55, at 224-25.
195. This marks another important difference between our typology and Whittington's distinction between operational crises and crises of fidelity. Whittington's notion of operational crisis occurs when "following all of the correct constitutional procedures" leads to disorder or when "the constitutional government is incapable of rendering the political decisions or taking the effective political actions that are widely regarded as necessary at a given moment."
196. Whittington, supra note 15, at 2101-02. But once a reasonable dispute arises about what are the "correct constitutional procedures," there is no longer an operational crisis in his terms. Our point is that what makes a dispute reasonable cannot always be assessed outside of the context of decision. That means, among other things, that there is always enormous pressure to turn type two crises into disagreements about interpretation.
197. See David J. Luban, On the Commander in Chief Power, 81 S. CAL. L. REV. 477, 510 (2008) (asserting that the framers of the American Constitution feared "excessive democracy" and believed that "populist politics" could lead to military dictatorship, as was the case with Rome under Caesar).
198. See id. at 508-14 (noting that the "founding generation had crucial historical examples of military coups to ponder," including Caesar's Roman empire and the English Civil War).
199. See MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 1381-92 (Guenther Roth & Claus Wittich eds., 1968) (critiquing the German parliamentary system). This was the theme of Gerhard Casper's Inaugural Kronman-Postol Lecture at the Yale Law School in December 2006. See Gerhard Caspar, President Emeritus, Stanford Univ., Inaugural Kronman-Postal Lecture at Yale Law School; Caesarism in Democratic Politics-Reflections on Max Weber (Dec, 7, 2006), available at http:// www.law.yale.edu/documents/pdf/News-&-Events/CaesarismYLS.pdf. (discussing the relevance of Max Weber's theories on the plebiscitarían characteristics of parliamentary democracies).
200. See sources cited supra note 61.
201. See JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR 180 (2006) (noting that the United States held a presidential election after the revelations at Abu Ghraib and the leaking of the 2002 memoranda on interrogation practices) ;
202. John C. Yoo, With All Necessary and Appropriate Force, ' L.A. TIMES, June 11, 2004, at Bl 3 [hereinafter Yoo, Necessary and Appropriate] ("If the American people disagree with [the Administration's detention and interrogation] policy, they have options: Congress can change the law, or the electorate can change the administration.");
203. cf. Jim VandeHei & Michael A. Fletcher, Bush Says Election Ratified Iraq Policy: No U.S. Troop Withdrawal Date Is Set, WASH. POST, Jan. 16, 2005, at Al (quoting President Bush: "We had an accountability moment, and that's called the 2004 election..., The American people listened to different assessments made about what was taking place in Iraq, and they looked at the two candidates, and chose me."). The entire interview is available online.
204. See Interview by Michael A. Fletcher Sc Jim VandeHei with President George W. Bush Aboard Air Force One (Jan. 16, 2005), available at http://www.washingtonpost.com/ac2/wp-dyn/A12570-2005Janl5?.
205. See JOHN L. CASTI & WERNER DEPAULI, GÔDEL 88-89 (2000) (recounting the story of Gödel's citizenship examination);
206. Jim Holt, The Loophole: A Logician Challenges the Constitution, LINGUA FRANCA, Feb. 1998, at 92 (discussing Gödel's theory).
207. For a slightly different but noncontradictory version of the story, see Godel, Einstein and the Immigration Service, INSTITUTE LEITER (Inst, for Advanced Study, Princeton, N.J.), Spring 2006, at 7 (noting the version of the Gödel story told in a memoir by Oskar Morgenstern, recorded on September 13, 1971). We are grateful to Mary Dudziak for making us aware of this last source.
208. See GOD CREATED THE INTEGERS 1089-1118 (Stephen Hawking ed., 2005) [hereinafter INTEGERS] (explaining Gödel's two incompleteness theorems).
209. SeeLEVINSON, supra note 110, at 122-54 (asserting that the Constitution does not have an easily ascertainable or static meaning and that this ambiguity makes it difficult to determine whether or not one is truly "committed to the Constitution").
210. U.S. CONST, art. II, §2, cl. 3.
211. INTEGERS, supra note 151, at 1095.
212. CASTI & DEPAULI, supra note 150, at 89.
213. . Id . (omission in original).
214. Id.
215. INTEGERS, supra note 151, at 1095.
216. See, e.g., Yoo, Necessary and Appropriate, supra note 149 (declaring that "[g]eneral criminal laws are usually not interpreted to apply to either [the President or the military], because otherwise they could interfere with the president's constitutional responsibility to manage wartime operations").
217. See Posting of Jack M. Balkin to Balkinzation, Reductio ad Dictatorem, http://balkin.blogspot.com/2006/04/reductio-ad-dictatorem.html (Apr. 7, 2006) (discussing the logical consequences of Attorney General Alberto Gonzales's theories of presidential power).
218. Akhil Amar has pointed out to us in conversation that the limitation on amendments about the Senate is easily avoided. One could simply abolish the Senate through Article V and create a new body with identical powers but a different name and a different mode of representation.
219. For an extended discussion of Schneiderman v. United States, 320 U.S. 118 (1943), which turns precisely on whether a Communist can in fact be "attached" to the "principles" of the Constitution,
220. see LEVINSON, supra note 110, at 135-38, 142-54. The Schneiderman majority effectively holds that there are no true substantive principles inasmuch as anything is possible through Article V amendment.
221. See, e.g., DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR 255 (2004) (critiquing the U.S. Constitution), Volker Neumann has written on Schmitt's influence on the drafting of the German Constitution: It is an exaggeration to assess the guarantee against changing certain eternal constitutional principles in Article 79(3) as an 'expression in positive law' of Schmitt's doctrine of the substantive limits of constitutional revision, This provision can plausibly be traced back to Richard Thoma, who participated asan adviser in drawing up the Basic Law and in 1948 proposed such a 'norm of inviolability.'... Thus Schmitt was present in the emergence of Article 79(3) at least indirectly.
222. Volker Neumann, Introduction, in WEIMAR: A JURISPRUDENCE OF CRISIS, supra note 3, at 280, 286-87.
223. For a critical analysis of such "eternity provisions," see generally MELISSA SCHWARTZBERG, DEMOCRACY AND LEGAL CHANGE (2007). Ackerman defines himself as a "democrat" precisely by conceding the possibility of limitless-and constitutionally legitimate-change so long as the correct procedures are followed.
224. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 10-16 (1991).
225. For a debate about the notion of "unconstitutional constitutional amendments," see Walter F. Murphy, Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity, in RESPONDING TO IMPERFECTION 163, 168-90 (Sanford Levinson ed., 1995);
226. John R. Vile, The Case Against Implicit Limits on the Constitutional Amending Process, in RESPONDING TO IMPERFECTION, supra, at 191.