Lawfare Archive: Richard Albert on Constitutional Resilience Amid Political Tumult

Summary

---

The Lawfare Podcast

Lawfare Archive: Richard Albert on Constitutional Resilience Amid Political Tumult

Date: August 31, 2025
Host: Kevin Frazier
Guest: Richard Albert, William Stamps Farish Professor of Law, Professor of Government, and Director of Constitutional Studies at the University of Texas at Austin

---

Episode Overview

This episode is a deep dive into constitutional resilience—what allows constitutions, specifically the U.S. Constitution, to withstand episodes of severe political upheaval and partisan division. Host Kevin Frazier and guest Richard Albert focus on comparative constitutional law, the rigidity and adaptability of constitutional frameworks, the extraordinary difficulty of amending the U.S. Constitution, and whether the veneration of the American constitutional order both sustains and constrains democracy at moments of stress. The discussion explores amendment models worldwide, the shifting global influence of the U.S. Constitution, the evolving power of courts, and the prospects and anxieties surrounding constitutional conventions.

---

Key Discussion Points and Insights

1. U.S. Constitutional Anomalies in Global Context

• Amendment Difficulty:

  • The U.S. Constitution is described as the most difficult to amend globally, especially compared to newer constitutions.
    • “I think it's the world's most difficult Constitution to amend today, and there are a lot of reasons why.” — Richard Albert [04:50]

• Breadth of Constitutional Rights:

  • The U.S. Constitution includes comparatively fewer rights, especially positive (social/economic) rights present in many modern constitutions.
  • Examples elsewhere: Rights to healthcare, clean environment, shelter—all largely absent from the U.S. federal Constitution (though sometimes found in state constitutions).
    • “You'll see in constitutions the right to a job, the right to health care, the right to a clean environment, the right to shelter and food... The U.S. constitution has a bunch of negative rights.” — Richard Albert [06:42]

• Declining Global Influence:

  • Once the model for new democracies, the U.S. Constitution is now less often emulated. Contemporary drafters look instead to constitutions such as those of South Africa or Canada.
    • “It used to be the standard, the one that everyone looked to... No longer. And so the US Constitution's influence has really declined from the founding to the present moment.” — Richard Albert [04:50]
    • “Justice Ginsburg, if you were writing a new constitution today, which constitution would you advise we look to?... Her answer, I would not look to the US If I were Writing a new Constitution today.” [15:09]

2. The U.S. Supreme Court's Power, Real and Imagined

• Comparative Judicial Strength:
  • The U.S. Supreme Court is highly influential domestically, but less powerful than several peer institutions internationally which can, for example, invalidate even procedurally proper constitutional amendments.
    • “Courts around the world have exercised powers that really cause people to do a double take... Invalidate duly passed, procedurally perfect constitutional amendments. They do this around the world. The U.S. supreme Court has said it will not do that.” — Richard Albert [17:26]
  • U.S. Courts exercise restraint absent elsewhere.
    • Example: Indian, Colombian, Turkish courts have much wider latitude to invalidate amendments.

3. The Hydraulic Pressure Theory and Constitutional Change

• Pressure and Change:
  • Albert references Heather Gerken's metaphor of hydraulic constitutional pressure: When paths for legal change are blocked (e.g., amendment process is too hard), political energy seeks alternative outlets such as judicial interpretation or major legislation (superstatutes).
    • “When those paths become blocked... the energy in the engine has to find another way to release itself... Congress has passed what scholars have called super statutes... Another way... has been through judicial interpretation... It actually looks and feels like a constitutional amendment.” — Richard Albert [21:20]
  • Recent cases (e.g., Dobbs) are examples of judicially driven ‘amendment-level’ changes.

4. Comparative Models of Constitution Amendment

• Standard vs. Escalating Models:
  • Most constitutions now feature different amendment procedures based on the importance of the provision being changed (the escalating model). The U.S. sticks with a single, extremely high bar for any amendment.
    • “The standard model has given way to a more enlightened, differentiated model that I've called the escalating model... The most difficult amendment procedure must be used to amend the most important things.” — Richard Albert [27:47]
  • Some constitutions make certain principles unamendable (e.g., Germany’s protection of human dignity, France’s republicanism); the U.S. Constitution does not, beyond its early temporary protections for the international slave trade.
    • “Since 1989, over 50% of all new constitutions have chosen to make something unamendable.” — Richard Albert [31:41]

5. Constitutional Identity and Reverence

• American Exceptionalism:
  • The degree of constitutional veneration in the U.S. is extreme and globally unusual, fostering both respect and rigidity.
    • “There are other countries whose people venerate their Constitution, but not to the same degree as the people of America venerate theirs. And the proof is really in the pudding. How many Constitutions have there been here since 1787? Just one.” — Richard Albert [34:56]
  • Influences: Founding mythology, constant civic reference, and widespread symbolic artifacts (pocket Constitutions), all reinforcing a sense of popular sovereignty.
    • “From an early age, all the way through adulthood, you're invited to refer to it, to cite it, to trumpet the opening words, the majestic words of the Constitution... We the people.” — Richard Albert [37:57]
  • However, real power rests less with “the people” than is often romanticized.

6. Convention Phobia and Constitutional Change

• Ambiguity of Article V Convention:
  • The U.S. Constitution is silent on the rules governing a convention to propose amendments, leading to some fear (convention phobia) about an uncontrolled process.
    • “The Constitution doesn't outline rules for how to hold a Constitutional convention. And I think that can give people reason to worry, but also kind of some reason to be excited...” — Richard Albert [41:01]
  • Historical precedent (the 1787 Convention) suggests rules may be disregarded, further fueling uncertainty.

7. Resilience in Crisis and the "Sundial" Model of Constitutional Time

• Will the Constitution Explode Under Modern Pressures?
  • Despite deep contemporary polarization, Albert sees little real risk of fundamental rupture or abandonment of the Constitution: The U.S. tradition is to amend, reinterpret, or adjust, not restart.
    • “I am concerned, yes, about... the partisan division in this country now and for some time now and for some time to come. But I am not concerned about blowing up the Constitution because it's just not in the DNA of American constitutional practice to start anew.” — Richard Albert [44:13]
  • Contrasts with other nations, where regime change or civil conflict often leads to new constitutions.
    • “I’ve described the U.S. Constitution as operating under a sundial model of constitutional time... Other constitutions... use the grenade, the ticking time bomb model... [or] an hourglass model... The US Constitution stands alone in the entire world as operating under the sundial model.” [47:04]

---

Notable Quotes & Memorable Moments

• On Global Decline of U.S. Constitutional Model

  • “It used to be the standard, the one that everyone looked to for what to put in their Constitution... No longer.” — Richard Albert [04:50]

• Justice Ginsburg on Constitution-Making

  • “I would not look to the US if I were writing a new Constitution today.” — Ruth Bader Ginsburg via Richard Albert [15:09]

• On the Limits and Nature of U.S. Constitutional Revision

  • “It's just not in the DNA of American constitutional practice to start anew.” — Richard Albert [44:13]

• On Constitutional Time

  • “Other constitutions... use the grenade, the ticking time bomb model... The US Constitution stands alone in the entire world as operating under the sundial model.” — Richard Albert [47:04]

• On the Power of American Constitutional Reverence

  • “In fact, from an early age, all the way through adulthood, you're invited to refer to it, to cite it, to trumpet the opening words, the majestic words of the Constitution. We the people... The people see themselves and their values reflected in the Constitution. And in this way, the Constitution is kaleidoscopic.” — Richard Albert [37:57]

---

Timestamps for Major Segments

• Introduction and Episode Context – [02:13]
• What Makes the U.S. Constitution Anomalous – [04:50]
• Negative vs. Positive Rights – [06:42]
• Decline of U.S. Model Globally & Justice Ginsburg Quote – [13:59]
• The Supreme Court’s Power in Comparative Context – [17:26]
• Hydraulic Pressure and Constitutional Workarounds – [21:20]
• Amendment Models: Standard vs. Escalating; Unamendable Provisions – [27:47]
• Constitutional Reverence and Cultural Identity – [34:56]
• Convention Phobia & Article V Mysteries – [41:01]
• Resilience through the Sundial Model – [44:13]
• Final Thoughts and Farewell – [49:13]

---

Conclusion

The episode provides a wide-ranging and nuanced analysis of constitutional resilience, focusing especially on the U.S. Constitution’s global uniqueness, rigidity, longevity, and cultural status. Richard Albert makes clear that constitutional reverence can be both a strength and a stumbling block in turbulent times, and that, despite today's unprecedented polarization, American constitutional practice is shaped by continuity, adaptation, and a near-sacred respect for founding traditions—attributes that may get in the way of deeper reforms but also offer durability in times of tumult.

Transcript

[A]

The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of [e-mail] lawfare that's patreon.com Lawfair also check out Lawfare's.

[B]

Other podcast offerings, Rational Security, Chatter, Lawfare.

[A]

No Bull and the Aftermath.

[C]

Why Choose a Sleep Number Smart Bed Can I.

[D]

Make my sight softer?

[A]

Can I make my site firmer? Can we sleep cooler?

[C]

Sleep number does that cools up to eight times faster and lets you choose your ideal comfort on either side your Sleep number setting it's the sleep number biggest sale of the year all beds on sale up to 50% off the limited edition smart bed plus free premium delivery with any smart bed and adjustable base ends Labor Day. All Sleep number Smart beds offer temperature solutions for your best sleep. Check it out at a Sleep number.

[E]

Store or sleepnumber.com today hi, I'm Darina, co founder of OpenPhone. My dad is a business owner and growing up I'll never forget his old ringtone. He made it as loud as it could go because he could not afford to miss a single customer call. That stuck with me when we started OpenPhone. Our mission was to help businesses not just stay in touch, but but make every customer feel valued, no matter when they might call. OpenPhone gives your team business phone numbers to call and text customers, all through an app on your phone or computer. Your calls, messages and contacts live in one workspace so your team can stay fully aligned and reply faster. And with our AI agent answering 24. 7, you'll really never miss a customer. Over 60,000 businesses use OpenPhone. Try it now and get 20% off your first six [e-mail] tech and we can port your existing numbers over for free. OpenPhone no missed calls, no missed customers.

[D]

I'm Mary ford, intern at Lawfare, with an episode for the Lawfare Archive for August 31, 2025. This week, President Trump signed a new executive order entitled Additional Measures to Address the Crime Emergency in the District of Columbia. The order, among other things, fleshes out a plan for the broader deployment of the National Guard to address domestic law enforcement matters. On Thursday, in a Rare joint statement, 19 Democratic governors condemned the president's threats to expand the deployment of National Guard troops, including to cities such as Chicago, Baltimore and New York, calling it, quote, an alarming abuse of power, unquote. For today's archive episode, I selected an episode from August 23, 2024, in which director of Constitutional Studies at the University of Texas at Austin Richard Albert, joined Kevin Frazier to discuss what helps Constitutions withstand political TUMULT if the U.S. constitution has become too rigid, and more.

[A]

It'S the Lawfare Podcast. I'm Kevin Frazier, assistant professor at St. Thomas University College of Law and a Tarbell Fellow at lawfare, joined by Richard Albert William Stamps Farish, professor in Law, professor of Government and Director of Constitutional Studies at the University of Texas at Austin.

[B]

I am concerned, yes, about the division, the partisan division in this country now and for some time now and for some time to come. But I am not concerned about blowing up the Constitution because it's just not in the DNA of American constitutional practice to start anew.

[A]

Today, we're talking about comparative constitutional law, with a focus on what changes, if any, would make the US Constitution more resilient to pressure on its fundamental values and principles. Richard, I have to say that you're on my dream team of comparative law scholars. You've written enough articles and books to fill a frunk of a Tesla. You've played a role in helping scholars and lawmakers around the world think about the problem and cons of various constitutional designs. So I have to ask, given your exposure to so many different Constitutions, how anomalous is ours? Is the US Constitution like a weird step cousin at the family reunion, or are we more like a brother or sister to most Constitutions?

[B]

The US Constitution is anomalous in a bunch of ways. I think the most prominent way in which it's anomalous is in its amendment difficulty. I think it's the world's most difficult Constitution to amend today, and there are a lot of reasons why. But that's one factor that makes it just stand apart from the world's other Constitutions. Another point of interest about the U.S. constitution is that it contains so few rights compared to other world constitutions that have been written in the last half century. That's a second point of difference, and a third is about the evolution of the Constitution and its status around the world. It used to be the standard, the one that everyone looked to for what to put in their Constitution, how to separate their own powers. No longer. And so the US Constitution's influence has really declined from the founding to the present moment. So three bases upon which we can distinguish the US Constitution from Constitutions around the world.

[A]

I want to spend a lot of time on that amendment process, but first let's dig in to those other two. So on the rights that are afforded by the Constitution, even that phrasing seems a little bit odd, because if I'm correct, or we often talk about the U.S. constitution as having negative rights, whereas a lot of these, let's say, new constitutions or younger constitutions afford positive rights. Can you kind of break that down a little bit more? What are some examples of positive rights that we can find in other Constitutions that are just absent from the federal Constitution here?

[B]

If you look around the world to modern constitutions, you'll find what you've described as positive rights, what others have described as social and economic rights. And so, for example, you'll see in constitutions the right to a job, the right to health care, the right to a clean environment, the right to shelter and food. These are called positive rights, social and economic rights, because they put affirmative obligations on the state to do something to enable you to exercise that right. So when a Constitution says you have the right to food, the state has to give you the capacity to access food. The U.S. constitution has a bunch of negative rights. An example of a negative right is the First Amendment. Congress shall make no law respecting an establishment of religion. It's a freedom from government doing something to you. Right. Congress shall make no law abridging the freedom of speech. Congress will not do something. It's a negative right in the sense that it puts handcuffs on the government, preventing it from doing something to you, rather than an affirmative obligation that a positive right confers upon you as a resident or citizen of the jurisdiction. Now, I do want to make one point of distinction here, because the US Constitution does not have positive rights in the sense that we understand it in comparative constitutionalism, but state constitutions do. State constitutions have positive rights. This is a further point of distinction about the US Constitution because it really stands apart from all constitutions, not just world constitutions, but constitutions here in the United States. My colleague here at the University of Texas at Austin, Sandy Levinson, is fond of saying that he's a comparative constitutional scholar because he studies state constitutions. There are 51 constitutions here in the United States, if you really want to count them up. That's just a rich menu of range rights and structures that you can just dive into and learn a lot about how to structure government and how to protect rights and freedoms. And so I wanted to make that point to you because it really just drives home your initial point about just how anomalous the U.S. constitution is. I want to make clear, however, that just because the US Constitution is different or anomalous, it doesn't make it bad. I'm not making that point at all. This is just a descriptive analysis of the US Constitution in relation to others. We can certainly make value judgments, and I'm open to making those, but I haven't yet made them. I'm just describing for you the lay of the land in the world.

[A]

Well, we're gonna have to have you back on to just have the two of us totally nerd out on state constitutions. As a former clerk on the Montana Supreme Court, I can tell you all about the right to a clean and healthful environment in Montana, for example, or a right to know entrenched in the Montana Constitution. Fascinating. We could go on for hours and hours, and I look forward to when we get to do just that. But for now, let's circle back on the U.S. constitution. Kind of losing its lead, right? As you mentioned, it came out of the gate strong. Everyone looked to the US Constitution as a model, and yet now we're seeing further and further divergences from that framework. Is that just a matter of people not liking the US Constitution, or has there been an evolution in sort of constitutional theory as to how best design constitutions for more modern conditions?

[B]

There are a number of factors and forces and dynamics driving the decline of the US Constitution's influence in the world. Part of it is that the US Constitution is an 18th century creation, and we're now in the 21st century, right? So the 21st century problems that are confronting the US and the world, they demand new solutions, and the US Constitution just doesn't have those in its text. The US has developed some solutions, but not by constitutional amendment or reform, but by innovative judicial interpretations and constructions, by superstatutes, by workarounds that happen through the states. And so it's not that the US Constitution is behind in the sense of not operating the way it should or could. It's that the way it's changed just isn't reflected in the text of the Constitution because it hasn't been amended to make the changes. It's evolved by political practice and interpretation to impose those changes upon it. But one of the reasons why the US Constitution's influence has declined is because after the Second World War, countries started to look around the world to say, well, how can we protect rights better than we have been doing it before, better than the US Constitution does it? And they started to innovate new ways of doing that, including social and economic range rights. There was a second challenge, which was how do we want to structure the separation of powers in our jurisdiction? The US Constitution, of course, has a presidential system, and that used to be the dominant model for constitutions. Latin American Constitutions borrowed from the US but something happened between the end of the Second World War and the fall of, of the Berlin Wall, and that was the creation of the French semi presidential system. And so that has displaced the US Constitution as the most, let's say, prominent, most borrowed model in new constitutions that we see around the world. And there's also, of course, the traditional parliamentary system, which is quite popular and still in use in many jurisdictions around the world. So there's less of a, less of an adoption of the US Constitution's separation of powers than we've seen in the past. And we of course, have to talk about rights as well. We've talked about social and economic rights, but the kind of rights that the US Constitution codifies just aren't seen in many of the constitutions around the world. Let me give you an example. The Second Amendment. How many constitutions would you predict per protect something like the Second Amendment? I'll tell you, it's about four or five.

[A]

Thank you for answering the question because I was quite nervous that you were going to put me on the spot there. I was surely going to say four or five. So I'm glad to hear I was within range and nailed it. Only four to five have that similar right. Is there anything that's similar about those countries or is it just kind of a random hodgepodge of countries?

[B]

So Iran has something similar, Haiti has something similar, Mexico has something similar. These countries are not aligned, I guess ideologically. They're not similarly constitutionally structured. They just have chosen for their own local reasons to codify that kind of a right. But it's interesting, isn't it, that the US Constitution, the gold standard people thought, and many people still think today, is really standing apart from so many constitutions around the world. And so we're left to ask, I'm left to ask, is the US Constitution still worth adopting? If you're writing a new Constitution today, And if the answer is yes, what about it is worth adopting? Will you adopt Article 5? Will you adopt the menu of rights and freedoms? Will you adopt the separation of powers? One thought about this I can share with you from an interview that I rewatched last week, and it's an interview with the late Ruth Bader Ginsburg. And she was asked about 12, 13 years ago when she was traveling to Egypt. She was asked by an Egyptian television commentator in an interview, Justice Ginsburg, if you were writing a new constitution today, which constitution would you advise we look to? Her answer, I would not look to the US If I were Writing a new Constitution today. Those are her words, not mine. She suggests instead South Africa or Canada as models. So the U.S. supreme Court's preeminent progressive justice says, don't look to the US Constitution if you're writing a new Constitution anywhere in the world.

[A]

Fascinating. And I think what's so valuable about this comparative analysis is a reminder that Constitutions are so intertwined with our culture, with our history, and you can't disentangle those things. You really have to understand the unique motivations and goals at the time of their creation and see how those shift over time. And whether or not the Constitution is responsive or not is obviously a huge challenge. So with that in mind, I was thinking when you were listing the distinctive elements of the U.S. constitution, one that would probably be argued by the average person you come across at a Starbucks or your Applebee's or my own personal favorite ihop, if you were to ask them, hey, what's unique about the US Constitution? My hunch is that right now, one of the things that would jump to the top of that list would be a powerful Supreme Court. And yet you've speculated that our Supreme Court may not be even among the top 10 most powerful courts looking across all Constitutions. So that finding, I'm sure, would cause someone to just drop their flapjack right back onto the plate. Give us some context there. What are some examples of even stronger courts? What are we missing? Given so many folks thinking that SCOTUS has become this all powerful entity, can there possibly be even stronger courts elsewhere?

[B]

There has been a trend that's developed around the world over the past, let's say 50 years, 40 to 50 years that my colleague Ron Herschel described as juristocracy, which is really government by judges, courts arrogating to themselves powers that aren't constitutionally assigned to them, nor perhaps properly exercised by them. The second critique is a judgment call. Not one that I'm making, one that I'm reporting. But certainly it's the case that courts around the world have have exercised powers that really cause people to do a double take, asking really, can you do that? And political actors just lay down their arms and comply in the US as problematic, I will say, as some judgments have been insofar as the court has seemed to arrogate to itself powers to do things that are are really just surprising to people. In comparison to that, courts around the world have gone even further by doing things that this U.S. supreme Court has historically said it will not do. Now this court has done things like in Bush vs Gore, pick a presidential winner. That's unusual in the US but not in the world, because there are courts that actually do this either because they're constitutionally authorized to resolve these kinds of disputes. In the US there was a congressional statute that laid down the path for how to resolve this problem. The court short circuited that process in Bush vs Gore. In other countries, courts just have this power. Courts go further than that. They invalidate duly passed, procedurally perfect constitutional amendments. They do this around the world. The U.S. supreme Court has said it will not do that. So kudos to the US Supreme Court for exercising that self restraint. It's actually had the opportunity to invalidate constitutional amendments, federal amendments, on many occasions. On each occasion it said no. Now the U.S. supreme Court has invalidated amendments to the state constitutions. And that makes sense because the US Constitution is a federal overhang of rights and freedoms that have to be guaranteed across the land. And if a state constitution seeks to do violence to that, it's completely appropriate for the Supreme Court to say no. But when it comes to a federal constitutional amendment, the court has said properly, I think, no, we're not going to go there. But other courts around the world, India, Colombia, Turkey, Belize, the list goes on. They've said we're properly authorized whether or not the Constitution gives us this power to invalidate a constitutional amendment, even one that meets all of the procedural strictures laid out in the Constitution, to amend the text.

[A]

And you've previously built on the idea of Heather Gerken, if I'm not mistaken, and others about a sort of hydraulic pressure associated with constitutions. How does this theory of hydraulic pressure perhaps explain why we may see a rise in this juristocracy? What is the underlying theory and how might it give rise to judges having to play perhaps in their mind a larger role in adjusting or amending or modifying whatever slight verb you want to use. The Constitution in question.

[B]

I think one of the most useful theories about the U.S. constitution in the last generation has been Heather Gerkins very useful metaphor of a hydraulic system to describe the US constitutional order. The way it works is probably what you can imagine if you're picturing it in your minds. I think of an engine which runs on a hydraulic pressure system. An engine has a number of different paths through which the energy is directed. The theory of hydraulics as advanced by Heather Gherkin is that when there are certain paths in the system, think of an engine in that engine paths to release the pressure. When those paths become blocked for whatever reason, well, the energy in the engine has to find another way to release itself. And there are two ways. One, it either finds an alternative path and it exits the engine in a way that is maybe not intended, but still non problematic. The second way is that the pressure builds and builds and because it cannot escape, it explodes the system. And so now think of this in terms of the US Constitution. There are energies that build and build in the US Constitutional order for change, for reform. The ordinary path, the conventional path for those energies to manifest is through the Article 5 process of constitutional amendment. But because it's so difficult to amend the U.S. constitution, those energies that build and build and build in the system, they need to find alternative routes to manifest. And there have been a number of alternative routes that have been used in the US One of which is is Congress. So Congress has passed what scholars have called super statutes, statutes that have quasi constitutional status that were enacted because they couldn't do the same by amendment. Bruce Ackerman uses the Civil Rights act as an example of what he calls a landmark statute, what Bill Eskridge and John Faradion call a super statute. They have constitutional effect. Another way that these energies have really been able to release themselves outside of Article 5 has been through judicial interpretation. So pressure builds and builds and builds. And courts are not. Judges are not blind to this right. They're political actors like all others. And so they respond to these pressures and they interpret the Constitution in a way that actually looks and feels like a constitutional amendment. It just doesn't actually get codified in the text of the Constitution as one. Here's an Dobbs that is nothing if not an Amendment to the US Constitution. It just doesn't look like the 28th Amendment in the text of the Constitution formally, but functionally it is that. And that's a response to the pressures building and building in the constitutional order for change. Now we can discuss and debate whether that was a legitimate ruling by the U.S. supreme Court, whether the Court was responding to the right pressures. But the point I think still stands that that is an amendment level change to the US Constitution.

[D]

I'm no tech genius, but I knew if I wanted my business to crush it, I needed a website. Now thankfully, bluehost made it easy. I customized, optimized and monitor everything exactly how I wanted with AI. In minutes my site was up. I couldn't believe it. The search engine tools even helped me get more site visitors. Whatever your passion project is, you can set it up with Bluehost with their 30 day money back guarantee. What have you got to lose? Head to bluehost.com to start now. Ever feel like you're carrying something heavy and don't know where to put it down? Or wonder what on earth you're supposed to do when you just can't seem to cope? I'm Hesi Jo, a licensed therapist with years of experience providing individual and family therapy, and I've teamed up with BetterHelp to create mind if We Talk? A podcast to demystify what therapy's really about. In each episode, you'll hear guests talk about struggles we all face, like living with grief or managing anger. Then we break it all down with a fellow mental health professional to give you actionable tips you can apply to your own life. Follow and listen to Mind if We Talk on Apple Podcasts, Spotify, Amazon Music, or wherever you get your podcasts. And don't forget your happiness matters why.

[C]

Choose a Sleep Number Smart Bed Can.

[D]

I make my site softer?

[A]

Can I make my site firmer? Can we sleep cooler?

[C]

Sleep Number does that cools up to eight times faster and lets you choose your ideal comfort on either side your Sleep Number setting It's the Sleep Number biggest sale of the year all beds on sale up to 50% off the limited edition smart bed plus free premium delivery with any smart bed and adjustable base ends Labor Day. All Sleep number Smart beds offer temperature solutions for your best sleep. Check it out at a Sleep number store or sleepnumber.com today.

[A]

We'Re seeing some efforts right now to alleviate some of that pressure. Recently, President Biden outlined a broad set of fundamental changes to our judiciary and in some cases, our Constitution. More specifically, he called for a constitutional amendment that would undo the Supreme Court's recent presidential immunity decision. More generally, the need for constitutional amendment seems to have captured popular attention, making your research even more relevant than before. So to set the scene before we go more into the US Amendment process, what are some of the common ways for amending Constitutions around the world? Are there Constitutions that are just changing willy nilly that have way too low of a bar for amendment? Or do we usually see some sort of favorite approach that reaches a happy medium, perhaps between our very, very resilient Constitution to a Constitution that changes? Like a fair weather fan in the middle of the MLB season.

[B]

The US Constitution is, in my view, the world's most difficult Constitution to amend. Part of the reason why is because it uses the standard model of constitutional design for amendment rules. What is that standard model? The standard model is generally one procedure or set of procedures to amend everything in the Constitution. Now, since the writing of the Constitution in 1787. There have been great innovations in how we can amend constitution. So for example, the standard model has given way to a more enlightened, differentiated model that I've called the escalating model of constitutional design, which creates multiple procedures of constitutional reform, each different in terms of the degree of difficulty, but each expressly designated for use in relation to different parts of the Constitution. Let me give you an example. The Constitution of South Africa has three different amendment procedures. One that's easy, one that's moderately difficult, and one that's very, very difficult. The way we evaluate difficulty has to do with the thresholds needed to approve, has to do with the number of political institutions that have to be on board to ratify. As the degree of difficulty rises among these three procedures of constitutional amendment, the matters that can be amended using them, they rise in importance, which means that the most difficult amendment procedure must be used to amend the most important things in the Constitution itself. And the least difficult amendment procedure can be used to amend the least important things in the Constitution. Now, one question to ask is who determines what's most important? What's least important? Right. That choice in the escalating model of constitutional design is made by those who wrote the Constitution. And so we hope that those who are writing the Constitution assigning different parts and principles and rules in the Constitution to different degrees of amendment difficulty, we hope that they're responsive to the views and wishes and values of the people, that they're actually reflecting what the polity believes. But if that's the case, then I think that's actually a very good design for amending a Constitution because it doesn't require using the same amendment procedure to abolish slavery, for example, as we must use to change the date that the President becomes President from March 4th to January 20th. Right. I've just compared to you. The 13th amendment and the 20th amendment both had to be ratified using the same procedure. And that's unusual in the modern day. What we instead see in new constitutions is this differentiation among procedures of amendment. Now, you asked about how the US Constitution compares. That's one way in which it compares to other constitutions. The standard model versus the more enlightened, advanced, escalating model of constitutional design. There's another way in which the US Constitution differs, and that is the Constitution today makes nothing unamendable. Unamendable? Many constitutions around the world today actually expressly designate certain rules to be unamendable. What does that mean? It means that even if 100% of people and Political actors want to amend that thing. Can't do it. You can't do it using the amendment procedure. The only way to do it is by scrapping the constitution and making an altogether new one. Since 1989, over 50% of all new constitutions have chosen to make something unamendable. I'll give you some examples drawing from constitutions of the world since the Second World War. France makes the republican character of the state unamendable. That's a rejection of monarchy. Germany makes the human dignity of persons inviolable. That's a rejection of the horrors of Nazism and the horrific violations of human rights that they perpetrated the Nazi party. The Turkish Constitution makes secularism an unamendable characteristic of the state, a rejection of theocracy. The Czech Republic makes the democratic characteristics of the state unamendable. I could go on and on. Many constitutions do this. And I think unamendable rules are one of the most fascinating parts of constitutions because they reveal a lot about how the people themselves regard their polity, regard their community, and what they want to express to the world about what matters. Now let me tell you something. The U.S. constitution today doesn't make anything unamendable, but it once did. It once made something unamendable that expired in the year 1808. Remember what I've said? I've said that unamendable rules tell you a lot about a country. To me, they open a window into the soul of the Constitution. When Brazil tells you that federalism is unamendable, they really mean it. And when Brazil tells you that the right to vote is unamendable, they really mean it. The US Constitution made something unamendable from 1789, when the Constitution came into force, until 1808. What was that? It was the international slave trade tells you a lot about the Constitution, about what was happening at the time, and about the values and fears and and hopes that the people had for themselves and for their polity in the founding era.

[A]

So when we think about constitutions with souls, this sort of letter and spirit of a Constitution, how do you regard the process of building up that constitutional reverence? I think you could find no shortage of studies that quiz Americans on the structure of the Constitution and its various provisions. And the grades are not always great. But is it that sort of knowledge of just the ins and outs of a Constitution that builds up its resiliency and its respect among its populace? Or are there other means that you've studied where folks come to really bond with, for lack of a better phrase, their Constitution and come to regard it as part of their identity rather than something that needs to be either blown up if the pressure builds too much or finding odd, questionable escape valves.

[B]

This is another point of distinction between the US Constitution and constitutions around the world. Is that the degree of constitutional reverence, as you've called it? It's so high here, and it's unlike almost anything we see around the world. There are other countries whose people venerate their Constitution, but not to the same degree as the people of America venerate theirs. And the proof is really in the pudding. How many Constitutions have there been here since 1787? Just one. Just one. Most countries will replace their constitution every 19 years. That's the average lifespan of a constitution. And this is from data collected by my colleague Tom Ginsberg and Zach Elkins.

[A]

Just as Thomas Jefferson predicted, if we go way back when he famously for the Constitution to be amended about every 19 years, warning that you shouldn't have to wear the coat of your forebears.

[B]

That's right. That's right. And on that point, I'm a Jeffersonian. Many states adopt this model. Actually, states will say every 10 years or 20 years, it varies by state. They'll say periodically, the people have to be asked, do you want a new Constitution? And the people vote yes or no. If they vote yes, then a Constitutional convention is convened and they actually begin the work of writing a new Constitution. That's exciting, I think, but that has not happened at the US level. I don't know if it ever will. But there's something interesting about the US Constitution insofar as it is venerated, it is revered. And one question, the question you asked is why is that so? And do we see this around the world? Part of the reason why the US Constitution is venerated as it is here is because it's less seen as a body of law and more as a cultural artifact. And part of it is because of the founder worship that exists here. We refer back to Washington, to Jefferson, to Madison. All of these luminaries who are associated with the Constitution either because they were there or because they advised on it. Jefferson was not there. Washington was, of course. Madison was, of course. But we associate the Constitution with them. And both major political parties seek to clothe themselves in the Constitution. They say, I am acting constitutionally in a way that is consistent with the Founders. This is very interesting. You don't see that in many countries a harkening back to the past to pilot ourselves into the future. Another reason that the US Constitution is so revered in this country is because of civics classes. Civics classes. From a very early age, they teach you about the Constitution, you read it. In fact, from an early age, all the way through adulthood, you're invited to refer to it, to cite it, to trumpet the opening words, the majestic words of the Constitution. We the people and we make it very easy for people to seize the Constitution, to hold it as theirs. How? By publishing it in these small pocket sized versions that everyone sells or makes available for free. The Federalist Society sells it and makes it available for free. ACS sells it, makes it available for free. The government of the United States sells these pocket sized Constitutions. Everyone has at their disposal one of these constitutional documents that really allows you to hold it, to feel it as something tangible and to recognize that it is really yours and that you have the power over it. Now in reality, you don't. Because as much as the U.S. constitution and the people in the United States like to consider the country to be a popular sovereigntist Constitution, it's really not that we the people don't really govern. Right. It's a romanticization of the idea of the people. But nonetheless, the people see themselves and their values reflected in the Constitution. And in this way, the Constitution is kaleidoscopic. Its words are open, textured, they're general. Some might use the word vague, but the way you read the Constitution depends on how you're reading it and the values that you're bringing to your reading of the Constitution. That's part of the beauty, I think, of the Constitution. It really does allow itself to be interpreted in multiple ways.

[A]

Well, for all those pocketbook Constitution owners, or perhaps in the near future, some TikTok Constitution, I'm not sure how they're going to make it, but I'm sure it will be coming to a Gen Z or near you relatively soon. One thing they'd find missing is what an Article 5 convention would look like. So even if we had states agree or Congress agree to host this convention, absent from the Constitution is who the delegates would be, what could be on the agenda, what would have to be off the agenda? So many questions. So much so that some people have alleged that there's a sort of convention phobia. If we called for a convention, then who knows what we would end up with? We could have rule by Green Bay Packer fans or who, who can even imagine to what extent do you think that absence, that vacuum is causing? Maybe some trepidation when people call for larger efforts to amend and revise the U.S. constitution.

[B]

You're quite right that the Constitution doesn't outline rules for how to hold a Constitutional convention. And I think that can give people reason to worry, but also kind of some reason to be excited that you yourself can shape those rules. Now, of course, the question will always be who has the power, who has the power to write the rules? And I think a lot of the convention phobia that we're hearing these days and for the past really 30, 40 years, since a convention became almost a reality, came very close in the 80s, is people are worried about what the other side would do if the other side seized control. I understand that, I'm sure you understand that. But one I think of the protections that the Constitution itself folds into. The idea of a convention is that if there's a convention held, there is a rule that requires three quarters of all states to ratify whatever the product is of the convention. So even if a convention is convened and whatever the amendments that you fear the most are proposed according to the US Constitution, those proposals must still be ratified by three quarters of the states in order for them to become valid. So that I think can give some people some comfort. But there's a related point that has to be made because the founding Constitution, it was the product of a Constitutional Convention. The convention played by its own rules. In fact, it broke the rules that had been imposed upon it. There's only one precedent in United States history of national Constitutional Convention and the precedent there is of breaking the rules imposed upon it that gives people some reason to fear that a modern Constitutional Convention held today might choose not to abide by the 3/4 ratification rule. And so I understand both those who say oh no, no, no, no, everything's going to be fine, and those who say, oh no, no, no, no, we need to make sure that we hold the keys to the castle when a convention is held. So either we can make sure that we abide by the 3/4 rule, or we make sure that, that we change the rule to the way that benefits whatever our side is.

[A]

And when we're thinking about just how much pressure there may be building up in the US Constitution right now, where would you say we're at? Right? Should we be heading for the hills? Are we about to witness an explosion or relative to other constitutional explosions you may have seen or last minute safety valve turn ons to relieve that pressure, what's your level of concern about the buildup of that pressure in our own system?

[B]

I've been reading a lot over the past couple of years about how the current moment of partisan division compares to other moments of partisan division in American history. And what I've gathered from historians is that today the country is more divided than ever before since the Civil War era. And that's cause for concern. But it is not the Civil War level of division. And I don't anticipate that we will get to that point. But even if we were to get to that point, and I don't think we will, even if we were to get to that point, I don't think that the result would be an explosion of the US Constitution because we reached that point in the Civil War era. There was a choice made. Do we want to replace the Constitution and start afresh as we build the country anew on a basis of equality, legal equality for all, or do we want to do something else? They chose to do something else. They chose to amend the Constitution to keep legal continuity from the founding to that moment, to allow the Constitution to continue for as many years as possible. And here we are now, over 100 years later, with the same Constitution that has survived the Civil War, two Great wars, attacks on the homeland, partisan division. It's a resilient Constitution, but let's not fool ourselves. It's not the same Constitution that was created and enacted in the 1700s. It's the same Constitution, of course, in its text, but it's not the same Constitution in its operation, in the way it functions. Think only of the administrative state. That's brand new. It's not in the text of the Constitution. But that's a significant part of how the US Constitution functions. Political parties, nowhere mentioned in the Constitution. It's essential as a component to the functioning of the United States. And so I am concerned, yes, about the division, the partisan division in this country now and for some time now and for some time to come. But I am not concerned about blowing up the Constitution because it's just not in the DNA of American constitutional practice to start anew. It is in the DNA of other countries that just blow up their Constitution and say, we're going to press restart. In fact, that's the common model around the world. When other countries have civil wars, they rebuild with a new Constitution. When other countries have these defining moments where they need to reset, that reset is initiated by a new Constitution. Not here. Here. It's either an amendment, or it's a new understanding, or it's a new judicial interpretation, or it's a new partisan settlement about how politics will operate. I've described the US Constitution as operating under a sundial model of constitutional time. And it keeps going and going and going and going, never ending. Other constitutions don't use a sundial model of constitutional time. They use the grenade, the ticking time bomb model of constitutional time. And then there's a third set of constitutions around the world that use neither the sundial model, there's only one the US Nor the ticking time bomb model of constitutional time. They instead use a third model of constitutional time that I've described as the hourglass model of constitutional time. What does this mean? It means that the Constitution is pre programmed to allow itself to be replaced when and if the people want it to be replaced. Like the Jeffersonian model of state constitutions that you refer to a moment ago. That's an hourglass model of constitutional time because every 10 or 20 years the Constitution requires the people to be asked, do you want a new constitution? If they say yes, you just flip the hourglass and you start anew. But the US Constitution stands alone in the entire world as operating under the sundial model of constitutional time because no other constitution has survived for as long as and no other constitution will ever survive for as long because the constitution has 150 year head start on all others around the world.

[A]

Well, here's to some more constitutional longevity and perhaps a few safety valve releases of pressure every now and again, but we'll have to leave it there. Thank you again for joining.

[B]

Richard hey, thanks so much. What a pleasure to chat with you about a subject that I have dreams about. Not nightmares, dreams.

[A]

The lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written [e-mail] the podcast is edited by Jen Pacha and your audio engineer. This episode was Kara Shillin of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening. AI is transforming customer service. It's real and it works. And with fin, we've built the number one AI agent for customer service. We're seeing lots of cases where it's solving up to 90% of real queries for real businesses. This includes the real world. Complex stuff like issuing a refund or canceling an order. And we also see it when Fin goes up against competitors. It's top of all the performance benchmarks, top of the G2 leaderboard. And if you're not happy, we'll refund you up to a million dollars, which I think says it all. Check it out for yourself at Fin. A.