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Constitutional Crises

Sanford Levinson

University of Texas Law School

Jack M. Balkin

Yale University - Law School

August 12, 2008

University of Pennsylvania Law Review, Vol. 157, 2009
Yale Law School, Public Law Working Paper No. 161
U of Texas Law, Public Law Research Paper No. 146

In popular discussion, the term constitutional crisis is used to describe every kind of conflict, great and small. But we think we can give the idea greater analytical clarity, and in the process, make some important points about constitutional design.

The secret, we shall argue, is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly - even if people strongly disagree with each other and threaten each other - there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of crisis. In this essay we offer a typology of different types of constitution crises based on this insight.

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used - or threatened - in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task.

Number of Pages in PDF File: 46

Keywords: constitutional law, constitutional theory, constitutional design, constitutional crisis

JEL Classification: K10

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Date posted: September 16, 2008 ; Last revised: April 7, 2010

Suggested Citation

Levinson, Sanford and Balkin, Jack M., Constitutional Crises (August 12, 2008). University of Pennsylvania Law Review, Vol. 157, 2009; Yale Law School, Public Law Working Paper No. 161; U of Texas Law, Public Law Research Paper No. 146. Available at SSRN: https://ssrn.com/abstract=1267979

Contact Information

Sanford V. Levinson
University of Texas Law School ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)

Jack M. Balkin (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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