Lawfare Daily: Richard Albert on Constitutional Resilience Amid Political Tumult

[Introduction]

Richard Albert: It's not that the U.S. 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.

Kevin Frazier: 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.

Richard Albert: 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.

Kevin Frazier: Today we're talking about comparative constitutional law with a focus on what changes, if any, would make the U.S. Constitution more resilient to pressure on its fundamental values and principals.

[Main Podcast]

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 pros 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 U.S. Constitution like a weird step cousin at the family reunion, or are we more like a brother or sister to most constitutions?

Richard Albert: The U.S. 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 U.S. Constitution's influence has really declined from the founding to the present moment. So three bases upon which we can distinguish the U.S. Constitution from constitutions around the world.

Kevin Frazier: 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, 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?

Richard Albert: 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 because the U.S. 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 U.S. 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.

So there are 51 constitutions here in the United States, if you really want to count them up. And that's just a rich menu of 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 U.S. 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 U.S. 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, of the land in the world.

Kevin Frazier: Well, we're going to 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 U.S. Constitution as a model. And yet now we're divergences from that framework. Is that just a matter of people not liking the U.S. Constitution, or has there been an evolution in sort of constitutional theory as to how best design constitutions for more modern conditions?

Richard Albert: There are a number of factors and forces and dynamics driving the decline of the U.S. Constitution's influence in the world. Part of it is that the U.S. Constitution is an 18th century creation. And we're now in the 21st century, right? So the 21st century problems that are confronting the U.S. and the world, they demand new solutions. And the U.S. Constitution just doesn't have those in its text.

The U.S. has developed some solutions, but not by constitutional amendment or reform, but by innovative judicial interpretations and constructions, by super statutes, by workarounds that happened through the states. And so it's not that the U.S. 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 U.S. 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 U.S. Constitution does it? And they started to innovate new ways of doing that, including social and economic rights.

There was a second challenge, which was, how do we want to structure the separation of powers in our jurisdiction? The U.S. Constitution, of course, has a presidential system, and that used to be the dominant model for constitutions. Latin American constitutions borrowed from the U.S. But something happened between the end of the Second World War and the fall of the Berlin Wall, and that was the creation of the French semi-presidential system. And so that has displaced the U.S. 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. And so there's less of a, less of an adoption of the U.S. 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 U.S. Constitution codifies just aren't seen in many other constitutions around the world. Let me give you an example: the Second Amendment. How many constitutions would you predict protect? Something like the Second Amendment, I'll tell you. It's about four or five.

Kevin Frazier: 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, 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?

Richard Albert: 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, of a right. But it's interesting, isn't it, that the U.S. 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 U.S. 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 re-watched last week. And it's an interview with a 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 U.S. 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 U.S. Constitution if you're writing a new constitution anywhere in the world.

Kevin Frazier: 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 U.S. 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?

Richard Albert: There's been a trend that's developed around the world over the past, let's say, 50 years, 40 to 50 years, that my colleague Ran Hirschl 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 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 U.S., as problematic, I will say, as some judgments have been in so far as the Court has seemed to arrogate to itself powers to do things that 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 v. Gore, pick a presidential winner. That's unusual in the U.S., 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 U.S., there was a congressional statute that laid down the path for how to resolve this problem. The court short circuited that process in Bush v. 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. So, kudos to the U.S. 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 U.S. 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, as I said, 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.

Kevin Frazier: 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 the 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?

Richard Albert: I think one of the most useful theories about the U.S. Constitution in the last generation has been Heather Gerken's very useful metaphor of a hydraulic system to describe the U.S. constitutional order. And 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 Gerken, 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 U.S. Constitution. There are energies that build and build in the U.S. 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 U.S., one of which is Congress. So Congress has passed what scholars have called super statutes. Statutes that have quasi constitutional status that were enacted by the U.S. 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 Ferejohn 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 example: Dobbs. That is nothing if not an amendment to the U.S. Constitution. It just doesn't look like the 28^th amendment in the text of the Constitution formally, but functionally it is that. Then 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 U.S. Constitution.

Kevin Frazier: 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 U.S. 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 favored 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

Richard Albert: The U.S. 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 constitutions.

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. And 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 a 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 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 U.S. 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 U.S. 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 a hundred percent 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 percent of all new constitutions have chosen to make something unamendable.

I can 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. I 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 U.S. 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 hopes that the people had for themselves and for their polity in the founding era.

Kevin Frazier: 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?

Richard Albert: This is another point of distinction between the U.S. 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 Ginsburg and Zach Elkins.

Kevin Frazier: Just as Thomas Jefferson predicted. If we go way back when,

Richard Albert: That’s right.

Kevin Frazier: He called famously for the Constitution to be amended about every 19 years, warning that you shouldn't have to wear the coat of your forebears.

Richard Albert: 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 U.S. level. I don't know if it ever will.

But there's something interesting about the U.S. 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 U.S. 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. And so this is very interesting. You don't see that in many countries, a hearkening back to the past to pilot ourselves into the future.

Another reason that the U.S. Constitution is so revered in this country is because of civics classes. Civics class is 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 that. They’re 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. The 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.

Kevin Frazier: 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 cCming to a Gen Zer near you relatively soon. One thing they'd find missing is what an article five 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.

Richard Albert: You're quite right that the Constitution doesn't outline rules for how to hold a constitutional government 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's 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 U.S. 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. And the convention played by its own rules. In fact, it broke the rules that had been imposed upon it. And so 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. And so that gives people some reason to fear that a modern constitutional convention held today might choose not to abide by the three quarters ratification rule. And so I understand both those who say, oh, 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 three quarters rule, or we make sure that we change the rules to the way that benefits whatever our side is.

Kevin Frazier: And when we're thinking about just how much pressure there may be building up in the U.S. Constitution right now, where would you say we're at, right? Are, are, 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?

Richard Albert: 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 U.S. 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 a hundred 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 U.S. 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.

And so I've described the U.S. Constitution as operating under a sundial model of constitutional time. It keeps going and going and going and going, never ending. Other constitutions don't use the 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 U.S., 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 preprogrammed 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 U.S. 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 and no other constitution will ever survive as long because the Constitution has 150 year head start on all others around the world.

Kevin Frazier: 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 Richard.

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

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