How the US Digs Out of Constitutional Failure

Guest Blogger

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Anna Law

Professor Maxwell L. Stearns has written a bold book laying out a roadmap to overhaul the US Constitution by focusing on changing several structures and processes of US government. For example, he lay out proposals for increasing the number of viable US political parties and beefing up presidential accountability. Stearns’ aim is to have our political parties and institutions better reflect and represent the will of more Americans. Given American’s deep reverence of the Constitution, it may seem sacrilegious to tinker with the longest surviving constitution in the world. But now is exactly the time that we take up Stearns’ erudite, thoughtful, and thoroughly explicated reforms in Parliamentary America, as the United States is in the midst of constitutional failure, having moved past a constitutional crisis.

There is a palpable desire among the general public for pushback against government abuses of power and for reform. But what does better, stronger, and smarter look like? Parliamentary America aims to restructure institutional incentives so that there can be more viable political parties than two, changes the way the President is selected, and has more mechanisms to hold the Executive accountable. Professor Stearns knows people will not relinquish power willingly. Thus, his changes are strategic and he “radically alters the stakes by changing the rules of the game.” (Pg. 29)

Parliamentary America was published in 2024 before Trump started his second term. Professor Stearns was correct when he wrote then that the US was in a “constitutional crisis.” He explains the stakes, “We are a nation in crisis. Our constitutional system is broken. Without radical reform, the United States risks the fate of so many other democracies throughout history: collapse or dictatorship.  The threat is genuine and existential.” (Pages 3, 11)

Since the publication of his book, the US has moved into “constitutional failure” as Professor Jack Rakove argues, an assessment I agree with. constitutional failure, Rakove provides a definition:  

First, it must identify the specific situations where the government institutions have manifestly not fulfilled their constitutional functions. Second, it should treat these omissions not as occasional lapses but systemic defects. Third, it must explain how the political and ethical norms of constitutional governance have evaporated.

To accurately name the thing we are experiencing is important. If the US is still in crisis, multiple outcomes are possible as other constitutional scholars have described.  Either the crisis passes and the US is not worse off, the democracy ends, or the nation proceeds but in a significantly democratically weakened form. How the chattering class characterizes the situation the US is currently in influences public opinion and conditions public response. Now that the US is beyond crisis and into failure, the nation has no choice but to redesign our institutions when we come out of the spiral. We cannot go back to a system that led to failure. Parliamentary America’s proposals are an essential starting point for that national dialogue.

Pursuant to Rakove’s first criteria of constitutional failure, Congress refuses to perform its Article I constitutional role of checking the Executive branch with Speaker Johnson and the GOP shutting down the government for over a month in the Fall of 2025. It is hard to miss the “systemic defects” second part of Rakove’s definition.  The US Senate failed to convict Trump after he was impeached by the House in 2020 and 2021.  The Supreme Court is using its shadow docket and in major rulings to enable Trump policies. Both are examples of the GOP exploiting counter-majoritarian institutions to force electorally unpaltable policy changes and to preserve minority rule. And there are too many examples of Rakove’s final component of failure, which is the giving way of “political and ethical norms.” Only one example is the evisceration of the emoluments clause as if it was never there. Rakove ended his piece saying, “we no longer know which institution will rescue it.”

If none of the formal institutions of government or civil society will stand up, then it will have to be the people who right the ship. We the People organizing to vote out office one by one politicians who will not uphold democracy. And the people forming parallel institutions starting at the grassroots level to counter authoritarianism. These two developments will surely take longer than relying on a robust opposition party to defend and restore democracy, but it is what we are left with.  The alternative is to surrender.  Judging from the results in the Fall 2025 elections when there was not even a presidential race at the top of the ticket, a coalition for democracy is growing at the grassroots level.  In constitutional failure, reform becomes essential and urgent, not optional.

We all know the dire consequences of illiteracy or innumeracy but fail to discuss the political consequences of broad swaths of the general public not having knowledge of basic US government processes and institutions to be able to think in politically sophisticated ways to process what is happening to them and our country. An official from the US Chamber of Commerce who deployed a civics survey in 2024 said, “Put plainly, you can't fix what you don't understand…” This book fills raises the civic literacy of its readers.

Since the Parliamentary America was published, 500 political scientists have stated in a survey that they believe that the US has democratically backslid into some form of authoritarianism. Congress has abdicated its Article I duty of checking the executive branch’s excess. The lower federal courts have ruled repeatedly against Trump while the conservative Supreme Court super-majority has greenlit and expanded executive power. Some civil society institutions, including some universities and corporations, have bent the knee to the Trump administration.

Even as high profile elites caved, 7 million ordinary American were out in the streets in record numbers in April and October 2025 peacefully protesting against the direction the country has headed in. In Chicago and other cities, residents and local businesses are mobilizing to protect their friends and neighbors from violent ICE kidnappings. The disconnect between the elite and popular response to Trump’s policies is an opportunity to overhaul our failed Constitution. That Parliamentary America is written for a lay audience is especially valuable at this moment. 

Americans are being schooled in a real time lesson about how fragile US democracy is as we live through the effects of a crumbing constitutional order. However, we know from political science research across nations and history that countries descending into undemocratic rule eventually also do a U turn back towards democracy.

Although the length of time the United States spends at the nadir of the U is unknown, we now know a Third Reconstruction will be necessary to restore US democracy. Not only do Americans need to know how and why we descended into the current situation, but they also need to know how to redesign institutions and processes when, not if, the US returns to democracy.

Parliamentary America is informed by multi-disciplinary scholarship from political science, economic, and history, and goes comparative as well. While Professor Stearns describes his proposals as “the last radical means of radically repairing democracy” there is abundant evidence the public is amendable to big changes to our political system and can be educated to support them. Witness Prop 50 redrawing electoral districts in California that passed with a huge margin in the Fall of 2025 even though most of the electorate instinctively dislikes gerrymandering.  The measure passed overwhelmingly because Californians grasped the political context and high stakes. So too, US voters and residents can be educated on the political context for the changes Stearns is proposing.

If anything, Parliamentary America’s proposals are not radical enough. On the subject of the media landscape, the problem is much worse than Stearns describes. Not only did conservatives create their own talk radio network which liberals could not replicate, but they also control a handful of social media sites that enjoyed brand loyalty, and people being are “gerrymandered” through social media algorithms. (Pages 91, 99, 106) Conservatives built a set of unrivaled tv and radio megaphones, and regime aligned billionaires also bought key social media sites like Twitter in addition to mainstream news outlets like the Washinton Post, the Los Angeles Times, and CBS.  Americans now no longer agree on the same set of facts because the media landscape is siloed and large portions are controlled by regime friendly owners. That topic would take an entire book unto itself to unpack, and Stearns is wise to focus on several constitutional reforms.

No book can do all things and all the changes required to return to US democracy would fill a multi-volume set. Even as reforms have to happen simultaneously in many different arenas, we have to start somewhere instead of being immobilized or demoralized by the daunting task. Parliamentary America’s proposals are an excellent start to begin a national conversation on what nation’s Third Reconstruction will look like.

It matters not whether you will agree with every single one of Stearn’s proposals. His proposals, laid out in a smart and clear way, are as good as any a place to start plotting the US democracy’s comeback.

Anna O. Law is Herbert Kurz Chair in Constitutional Rights and Associate Professor of Political Science at the City of University of New York, Brooklyn College. You can reach her by email at alaw@brooklyn.cuny.edu