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)
As a political scientist trained to study institutions as rules and norms that incentivize the behavior of institutional occupants, this is exactly the right move. Stearns’ First Electoral Reform Amendment to end the arms race of partisan gerrymandering is an example. He proposes doubling the size of the House of Representatives and implementing proportional representation. (Chapter 3, and Pages 190-193)
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