Balkinization: Constitutional Crises

Comments:

"When constitutional design functions properly-- even if people strongly disagree with each other and threaten each other-- there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff"

But, what if we disagree about whether or not it's leading us off the proverbial cliff? How many people, and which people, have to think that's the case?

# posted by

Brett : 7:48 AM

But, what if we disagree...

That is exactly the point. The most important function of a "constitution" is to provide a practical framework for resolving differences of opinion.

The purpose of a constitution is NOT to enforce somebody's notion of an ideal society. That was Plato's gig... the original "Republican."

Because we DO disagree, and a good constitution is our answer to the question, "what are you going to do about it?"

# posted by

mattski : 8:02 AM

Is this a proper time to address Prof. Tribe's just released "Invisible Constitution"? Does the invisibility lie somewhere between originalism and a living Constitution? Do "Constitutional Crises" fall in the invisible area?

# posted by

Shag from Brookline : 8:13 AM

Granted, I am judging solely based on the abstract, rather than on the fully developed argument, but aren't you missing a type? I have in mind the wild hypothetical idea that political leaders might decide to violate the Constitution not openly but in secret, and take extraordinary measures to preserve the secrecy of the violations. And perhaps as a subtype, one could posit leaders who skirt and violate the Constitution while gaming the system of executive appointments such that flimsy legal opinions arguing that the violations are not, in fact, violations are generated. I suppose it could be argued that it's not a "crisis" if nobody really knows about it, but I would find that to be a rather unsatisfyingly narrow concept of "Constitutional crisis."

# posted by

Ginger Man : 10:01 AM

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used-- or threatened-- in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task.

Under this general principle (one with which I agree), it would appear that judicial actions rewriting the Constitution to remove issues from the political system would appear to constitute constitutional crises.

Your Type I crisis would appear to fit this situation apart from the fact that the judiciary are not supposed to be political leaders. Perhaps you need to add a Type I(a) crisis for judicial living constitutionalism.

# posted by

Bart DePalma : 10:12 AM

Bart's Type 1(a) crisis would take place if and only if judges themselves admitted (in public) that they really had no authority to do what they were doing, but were doing so anyway in order to save the republic. Richard Posner's defense of Bush v. Gore comes very close to this, but, of course, the Republican judges themselves in the majority offerd standard-model legal opinions justifying their action. Our condition for identifying a Type 1 crisis is really quite formal: The decisionmaker must admit--in public--that s/he is going beyond legal authority. As for secret transgressions, we have a short discussion and come to the (tentative) conclusion that if the secret is successfully maintained, then there is no "crisis," though, obviously, we might decide in retrospect that there "should" have been one because someone should have disclosed the secret.

Finally, with reagrd to Brett's point, we discuss "how many" and "which" at some length. There is no formal answer. The answer is some combination of "quite a lot," including, presumably, some "leaders," and they have to be willing to do something beyond writing angry letters to editors (or bloggers :)), such as engage in mass demonstrations or, ultimately, threaten (or even engage in) violence.

# posted by

Sandy Levinson : 10:40 AM

sandy levinson said...

Bart's Type 1(a) crisis would take place if and only if judges themselves admitted (in public) that they really had no authority to do what they were doing, but were doing so anyway in order to save the republic. Richard Posner's defense of Bush v. Gore comes very close to this, but, of course, the Republican judges themselves in the majority offerd standard-model legal opinions justifying their action. Our condition for identifying a Type 1 crisis is really quite formal: The decisionmaker must admit--in public--that s/he is going beyond legal authority. As for secret transgressions, we have a short discussion and come to the (tentative) conclusion that if the secret is successfully maintained, then there is no "crisis," though, obviously, we might decide in retrospect that there "should" have been one because someone should have disclosed the secret.

Why you are you equating secrecy with admissions?

I can understand your reasoning that a violation of the Constitution which is unknown to the People does not create a crisis between the People and their Government. However, if a branch of government openly violates the Constitution in full view of the People and the People are calling the Government on the violation, what real difference does it make if the Government has the hutzpah to deny that it has done what everyone has observed?

In the case of the Court, let us use the Boumediene decision as an example. Article I expressly grants the power to set rules for Captures to Congress and generally to the Executive as CiC. Nowhere does Article III grant the Court this power. However, in Boumediene, the Court effectively overruled the decisions of the elected branches, assumed this power of the elected branches for itself and thus removed the issue from the political process. I would urge that this rewriting of the Constitution by the Court to assume the powers of the elected branches would therefore constitute a constitutional crisis under your definition even if the Boumediene majority publicly claimed that they were only interpreting the Constitution and refused to admit that they were violating it.

(I am using this contention purely for illustrative purposes and not to restart this debate here. For the purposes of argument, just assume that the contention is correct or replace it with one of your own.)

# posted by

Bart DePalma : 12:13 PM

"Bart" DePalma:

[to Prof. Levinson]: Why you are you equating secrecy with admissions?

He's not. He's referring to admissions that the action is not consistent with the Constitution ["admission of 'wrongdoing'"], not the simple admission of the act ["secrecy"].

I can understand your reasoning that a violation of the Constitution which is unknown to the People does not create a crisis between the People and their Government. However, if a branch of government openly violates the Constitution in full view of the People and the People are calling the Government on the violation, what real difference does it make if the Government has the hutzpah to deny that it has done what everyone has observed?

See above.

In the case of the Court, let us use the Boumediene decision as an example. Article I expressly grants the power to set rules for Captures to Congress and generally to the Executive as CiC. Nowhere does Article III grant the Court this power. However, in Boumediene, the Court effectively overruled the decisions of the elected branches, assumed this power of the elected branches for itself and thus removed the issue from the political process....

This is just the Constitution operating as envisioned. The Supes disagree with you, "Bart". They're the Supes and you're not. No crisis.

... I would urge that this rewriting of the Constitution by the Court to assume the powers of the elected branches would therefore constitute a constitutional crisis under your definition even if the Boumediene majority publicly claimed that they were only interpreting the Constitution and refused to admit that they were violating it.

Where's the crisis? In this case, the crisis happens only if and when the executive, having been told by the Supreme Court that what they're doing is wrong, continues on that path ... ummmm, Rasul ... Hamdan ... Boumediene ... oh, rrrrriiiiggghhhtttt.

I guess the only saving grace here is that the maladministration continues to maintain that it is actually following the law despite getting smacked three times athwart the head by the Supes, so it's not really an open "admission" they're violating the law ... but then again, it's hardly a secret either.

Cheers,

# posted by

Arne Langsetmo : 12:37 PM

arne langsetmo said...

This is just the Constitution operating as envisioned. The Supes disagree with you, "Bart". They're the Supes and you're not. No crisis.

That "because they said so" argument has about as much merit as arguing that: "Mr. Bush disagrees with you. He is the President and you are not. No crisis."

# posted by

Bart DePalma : 1:35 PM

I would offer a partial defense of Bart here.

I DON'T agree with his implication that just because conservatives don't like certain decisions and have settled on the narrative that liberals are "making up the law" (which is actually a false claim, but I would say this even if it had any validity), that makes a constitutional crisis.

However, if one were to add to Bart's scenario the situation where a large majority of the public agreed and as a result the Supreme Court lost its legitimacy as a decision-making body-- and not just with Rush Limbaugh's listeners, but with the public at large-- that could constitute a crisis even if the courts never admitted they were violating the Constitution.

# posted by

Dilan : 2:35 PM

dilan:

You raise an interesting issue. Is it a constitutional crisis if a branch of government plainly violates the Constitution and a majority of the People support the violation or simply do not care?

Let's use an example with which Air America as opposed to Rush Limbaugh listeners can identify. Let us assume that the Bill of Rights applies to foreign enemy combatants, the President violates every single due process right Mr. Hamdan possesses under the Bill of Rights and 75% of the People support these violations. Is there a constitutional crisis?

Assuming arguendo that the President violates the Constitution under this hypo, I would most certainly contend that this constitutes a constitutional crisis made all the worse because the People are joining in on the violation. This falls under the category of "first, they came for the jews..."

# posted by

Bart DePalma : 3:28 PM

This comment has been removed by the author.

# posted by

Dilan : 5:27 PM

Bart:

It may seem strange for me to say this, but no, I don't think that's a constitutional crisis. Rather, that falls in the category of "amendment by popular consensus", which is what I would argue happened during the New Deal too. Essentially, if enough people buy into a new meaning of the Constitution, along with the Courts, that new meaning can gain traction even despite there not having been a formal constitutional amendment.

Now, note, I am not saying this is desirable. While I wouldn't go as far as you would, I would certainly get rid of some of the New Deal precedents (e.g., Wickard). But as a descriptive, not normative, theory of how constitutional interpretations change over time, this looks different from the "crisis" model which occurs when the system's fundamental legitimacy gets called into question.

# posted by

Dilan : 5:29 PM

Sandy --

What is the contents of this politics for which the Constitution creates the framework? Fascist Italy had a constitution, Romania under Ceaucescu had a constitution. Is politics the ability to redress grievances or merely the ability to petition the government to redress grievances? Is it the ability to change with the times or to resist change with the times? How universal, frequent and consequential must political participation be to count?

With respect to constitutional crisis, is it a crisis if there is stasis (Baker v. Carr)? Is it a crisis if there is an assassination? What about death squads? What about COINTELPRO? Can it be a constitutional crisis if the judiciary does it? What about Dred Scott? What about Bush v. Gore? Can it be a constitutional crisis if everyone who counts is in agreement (e.g. Japanese internment of WWII)? Is going into a constitutional crisis like crossing the event horizon of a black hole, you can't tell it's happened but it's inescapable?

Constitutions are structural documents; they can fail because they describe an unstable structure and have to be replaced, as with the Articles of Confederation or the various French republics. However, the more usual case is that the power relations they represent are no longer sustainable; the ancien regime is overthrown and the new constitution redistributes power. Even in Canada.

The Supreme Court of the Civil Rights Cases and Plessy thought the civil war had not changed the constitution, the Warren court thought it had, the Rehnquist/Roberts counterrevolutionaries think it did not. Who decides?

Breyer is very clear about this. He thinks Worcester v. Georgia was a constitutional crisis, Cooper v. Aaron was a constitutional success. But Jackson believed the Cherokees were outside the framework, and Ed Meese and his boys fiercely believe that the Court broke the Constitution in Arkansas.

Constitutional crisis is not a taxonomy, it's a historical judgment, and you just have to decide how revisionist you will be and in what way.

# posted by

Anonymous : 5:29 PM

Dilan:

I would offer a partial defense of Bart here.

I DON'T agree with his implication that just because conservatives don't like certain decisions and have settled on the narrative that liberals are "making up the law" (which is actually a false claim, but I would say this even if it had any validity), that makes a constitutional crisis.

However, if one were to add to Bart's scenario the situation where a large majority of the public agreed and as a result the Supreme Court lost its legitimacy as a decision-making body-- and not just with Rush Limbaugh's listeners, but with the public at large-- that could constitute a crisis even if the courts never admitted they were violating the Constitution.

No,I don't think so. I think we'd have a crisis if the population, up in arms about an egregious decision, elected lawmakers that impeached the Supes, and they refused to step down.

That (as is the preznit ignoring the courts) is a breakdown in the order and protocol imposed by the Constitution, and that is a crisis.

As Prof. Choper said when I had pointed out that the preznit can indeed decide to "interpret" the Constitution himself and act accordingly (this long before the installation of Dubya), this then exceeds the bounds of Constitutional law, and becomes a different subject. At that point, the Constitution is broken, and all bets are off.

Cheers,

# posted by

Arne Langsetmo : 5:53 PM

"Bart" DePalma:

[Arne]: This is just the Constitution operating as envisioned. The Supes disagree with you, "Bart". They're the Supes and you're not. No crisis.

That "because they said so" argument has about as much merit as arguing that: "Mr. Bush disagrees with you. He is the President and you are not. No crisis."

I agree that my disagreements with the preznit do not rise to the level of a Constitutional crisis. I would suggest that your disagreements with the Supes do not either.

And if I act in accordance with my disagreements (or if you do), that in no crisis either.

It is when the preznit acts in disagreement with the co-ordinate branches (and does not seek to resolve the differences in the Constitutionally prescribed manner) that the true crisis arises.

The Constitution contemplates differences between the branches arising, and provides for the means of resolution (including amending itself, although there is the interesting philosophical questions as to whether there are limits to what is rationally permissible as the the extent of such amendment while still maintaining a supposed adherence and fealty to such). But if everyone just decides to "do their own thing", then the Constitution becomes just a series of "suggestions", or worse yet, an old scrap of paper....

Cheers,

# posted by

Arne Langsetmo : 6:01 PM

On Tribe's "Invisible Constitution", Walter Bagehot wrote "The English Constitution" a long time ago without the need for one that was written.

# posted by

Mike Zimmer : 7:12 PM