Max Stearns
Harvard University recently hosted two events. A Harvard Law School conference featured five notable speakers who, as reported in Harvard Law Today, determined the United States isn’t experiencing a constitutional crisis. One panelist even claimed such talk itself threatens democracy. Soon thereafter, at Harvard’s annual Latkes vs. Hamantasch debate, political scientist Steven Levitsky claimed an upset victory against psychologist, Steven Pinker, despite having been assigned the unenviable task of defending, as he described it, a “dry, shit cookie[]”. Justice Stephen Breyer dropped a video appearance in which he lamented being overlooked despite his qualifying, if alternatively spelled, first name.
Based on the reporting, the debate was more amusing. Even so, and despite his having won, I cannot help but think Levitsky participated in the wrong event. Had he been featured at the law school’s democracy panel, Levitsky might have recounted the central thesis of his coauthored book with Daniel Ziblatt, How Democracies Die. Ziblatt and Levitsky convey three central claims:
1st: Although some democracies fall in spectacular military fashion, many instead fall as a consequence of the gradual erosion of longstanding democratic norms;
2nd: Constitutional crises can persist for years, even decades, on end prior to collapse or to yielding to dictatorship; and
3rd: The most important lesson is to avoid waiting until it’s too late before undertaking vital reforms that limit the serious risk of democratic failure.
Since the start of the Trump GOP takeover, the US has precisely experienced a steady and ongoing erosion of democratic norms. And since the start of his second administration, the decline in democratic norms has been precipitous. The Harvard panelists apparently don’t see it this way, and from where I sit, it seems hard to imagine getting matters more wrong. If Levitsky’s mediocre cookie matters at all, it’s as a stand in for our crumbling democratic norms, or instead perhaps as a three-pointed metaphor for separation of powers, all collapsing into a singular point with Trump seizing all powers intended as a meaningful check. Today’s Hamantaschen lacks coequal corners.
One panelist suggested that what we are observing, power exercised and then strongly opposed, illustrates our system operating as it should. Another heralded the importance of judicial checks on executive overreach, despite the Supreme Court affording President Trump near absolute immunity for nearly anything he might do in office because Trump has not, at least yet, declared an intent to defy judicial decrees. And yet one more expressed concern that the real problem may rest with those who are claiming a constitutional crisis:
Employing phrases like “constitutional crisis” without sufficient caution or knowledge of law and facts involved in the various cases, [one panelist] suggested, could help foster a confrontation where there isn’t one yet. “As people who care about the rule of law, I think that we need to think about our own participation in hastening its demise.”
I’m confident the panelists are wrong. We are in a constitutional crisis, the third in our history and most serious one since the Civil War and Reconstruction. To see why, consider how our constitutional norms have eroded and how our basic institutions have changed:
1. Despite having been charged with four serious sets of felonies, two state and two federal, Trump has held an unyielding grip on the GOP.
2. Despite his amply documented role in inciting the January 6, 2021, insurrection, intended for the first time to end the peaceful transfer of power, Congress failed its second attempted conviction following an impeachment.
3. Upon his second ascent to the White House, Trump fired or forced the resignations of career-long federal prosecutors simply for doing their jobs.
4. Trump has also ensured the firing or resignations of countless members of the federal civil service, and conveyed his intent to supersede a professional civil service with a patronage scheme.
5. Trump seeks to end the independence of independent agencies.
6. Trump has empowered Elon Musk, a multi-billionaire mogul never elected or subject to Senate advice and consent, via DOGE, to demand drastic federal cuts, including the noted losses of jobs.
7. Trump elevated loyalists devoid of experience, some of whom exhibited deeply problematic personal conduct or who held positions antithetical to the very mission of their offices, to cabinet level posts.
8. Trump threatened sanctions against academic institutions and law firms who represented clients or positions with which he disagrees.
9. Trump created a trade war with longstanding U.S. allies that he has since acknowledged might cause a recession.
10. Trump blamed Ukraine for causing Russia to invade it and start the war.
11. The Republican-controlled Congress has put up no meaningful resistance to any of this, or to executive orders insisting upon two genders, ending DEI, and cutting funding even for medical research.
12. The Supreme Court has afforded Trump near absolute immunity for any actions taken as President.
It would be easy to add other entries, including Trump's unprecedented record of lies and disinformation, including one admittedly amusing example involving the failure to look up the word "transgenic" prior to claiming before a joint session of Congress that the Biden administration spent $ 8 million studying transgender mice.
In his most recent publication, The Path to American Authoritarianism, Levitsky and coauthor, University of Toronto political scientist Lucan A. Way, explain that the U.S. risks transforming into “competitive authoritarianism.” They define that as a system in which, although power swings back and forth between increasingly extreme elected leaders, the transition fail to restore gutted democratic norms. Instead, as in some South American presidential systems, we risk ongoing volleys between neo-socialists, on one side, and neo-fascists, on the other. For all that divides them, the leaders are destined to agree on one thing—keeping the powers prior leaders have aggregated to the presidency.
It's not clear whether the Harvard panelists defined constitutional crisis. Please allow me. A constitutional crisis arises when the premises on which our system is operating can no longer be reconciled with the vital needs of governance and society. In my book, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (JHU 2024), I defend the claim that we are in one, and I explain what we must do to fix it.
This isn't the place to recount my thesis, and I encourage those reading this to read my book. But please let me add just one point. I've long admired and learned from Steven Levitsky and his coauthors, but we don’t always agree. The reason is that, along with so many other thoughtful writers in this space, these authors have been reticent in taking on what I am certain is the root cause of our crisis: two-party presidentialism. In the information age, this system, replicated no where in the world, has created the serious constitutional crisis and threat to democracy we face. The danger isn’t calling that out. It is failing to do so loudly and clearly.
I welcome your comments.
[Thank you to my colleague, Liza Vertinsky, for helpful comments on an earlier draft.]
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