University of Pennsylvania Law Review FOUNDED 1852 ______Formerly American Law Register ______

VOL.157 FEBRUARY 2009 NO.3

ARTICLE

CONSTITUTIONAL CRISES

† †† SANFORD LEVINSON &JACK M. BALKIN

[W]e must never forget that it is a we are expounding. . . . [It is] a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

1 McCulloch v. Maryland

Among all the other Roman institutions, [the dictatorship] truly deserves to be considered and numbered among those which were the source of the greatness of

† W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas Law School; Professor of Government, University of Texas at Aus- tin. †† Knight Professor of Constitutional Law and the First Amendment, Yale Law School. We are extremely grateful to a number of law schools that gave us the oppor- tunity to present different versions of this Article while it was very much a work in pro- gress. In chronological order, they are the Law Center, the Michigan and Quinnipiac Law Schools, the Legal History Workshop at , the University of Minnesota Law School, and Vanderbilt Law School. We also benefited from responses by , Keith Whittington, Mark Tushnet, and Adrian Vermeule. 1 17 U.S. (4 Wheat.) 316, 407, 415 (1819).

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such an empire, because without a similar system cities survive extraordinary cir- cumstances only with difficulty. The usual institutions in republics are slow to move . . . and, since time is wasted in coming to an agreement, the remedies for republics are very dangerous when they must find one for a problem that cannot wait. Republics must therefore have among their laws a procedure . . . [that] re- serve[s] to a small number of citizens the authority to deliberate on matters of ur- gent need without consulting anyone else, if they are in complete agreement. When a republic lacks such a procedure, it must necessarily come to ruin by obeying its laws or break them in order to avoid its own ruin. But in a republic, it is not good for anything to happen which requires governing by extraordinary measures.

2 Niccolò Machiavelli

INTRODUCTION:“CONSTITUTIONAL CRISIS”EVERYWHERE? ...... 708 I. CRISES VERSUS EMERGENCIES...... 716 II. TYPE ONE CRISES:DECLARING A STATE OF EXCEPTION ...... 721 III. TYPE TWO CRISES:EXCESSIVE FIDELITY TO A FAILING CONSTITUTION ...... 729 IV. TYPE THREE CRISES:STRUGGLES FOR POWER BEYOND THE BOUNDARIES OF ORDINARY POLITICS ...... 738 CONCLUSION:GÖDEL’S PROOF? ...... 746

3 INTRODUCTION: “CONSTITUTIONAL CRISIS”EVERYWHERE?

The Constitution of the was written against the back- ground of perceived crisis.4 It is therefore no surprise that the lan-

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 coun- tries. Notable examples include OREN GROSS &FIONNUALA NÍ AOLÁIN, LAW IN TIMES OF CRISIS:EMERGENCY POWERS IN THEORY AND PRACTICE (2006), and JOHN E. FINN, IN CRISIS:POLITICAL VIOLENCE AND THE RULE OF LAW (1991). For ob- vious reasons, many especially fine books have been generated by the history and after- math of Weimar Germany. See, e.g., PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW:THE THEORY &PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); WILLIAM P. SCHEURMAN, BETWEEN THE NO