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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, 1427 E. 60th St., Chicago, IL 60637. 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 constitutional convention or, at the very least, adopt a series of new constitutional amendments. Although he does not reject the relevance of political 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-