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.