What Could Cause a Constitutional Crisis?

Constitutional democratic government is “the most effective kind of government for the survival of free societies,” Professor Jacob T. Levy said in his June 16, 2020 IHS Summer Seminar lecture on “The Crisis of Constitutional Democracy.” However, Dr. Levy warned, features of our constitutional democracy put us at permanent risk of crisis.

Dr. Levy, the Tomlinson Professor of Political Theory at McGill University and author of Rationalism, Pluralism, and Fear, explained that ensuring separation of powers was a challenge for America’s founders. In 18th century England, the branches of government were tied in part to social classes: there was the monarchy (executive power), House of Lords (legislative), and House of Lords (judicial). This created some guarantee of separation, which prevented a crisis of government.

But the U.S. was very different. Levy explained:

[The founders’ problem was that unlike England, unlike France, the new United States had no aristocracy, to say nothing of a monarchy sitting around. How could it be that the powers would remain separated if they weren’t attached to social classes that were trying to stand up for their separate social status? … Ambition must be made to counteract ambition.

-Dr. Jacob T. Levy
World History of Liberalism

Unfortunately, Dr. Levy explained, “the founders turn out to have been wrong. Simply saying, I’m a member of Congress, I’m a Senator, I’m a representative doesn’t give people so much pride in their office that they were determined to hold the president to account. Instead they say, I’m a member of the same party, the same team as the president.”

In other words: “Not only is the separation of parties not the same as the separation of powers, it exists really awkwardly with it.”

But that’s not the only problem. Americans’ uneasiness with the party system, and with rule by elites, incentivizes the president to make an appeal directly to the people, aligning himself with the masses against the “elite” other two government branches. The power of the executive is hardest to constrain in a constitutional democracy.

The greatest concern that Montesquieu had, and a very live concern for the American founders, was that the executive had control of the police and the military. There’s the risk of serious crisis to constitutional democracy. It’s not the case that the three branches are equal.

-Dr. Jacob T. Levy
Dr. Jacob T. Levy

The asymmetry in power between the branches and the awkward relationship between party loyalty and office loyalty, makes our constitutional democracy permanently fragile.

You can watch Professor Levy’s full lecture and the rest of the IHS Summer Seminar on our YouTube channel. For more information on Summer Seminars, graduate and faculty programs, and funding opportunities, visit TheIHS.org.

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