Envisioning a forthcoming constitutional crises

Sandy Levinson

Are we in a genuine "constitutional crisis," whatever the dysfunctionality of our national government?  Probably not, though if a Republican Senate were to continue to refuse to confirm any nominees by a  Democratic President for the judiciary (or anything else), that could easily take on the overtones of a genuine crisis. (One can "starve the beast" almost as easily by refusing to allow the appointment of officials charged with administering the national government as by refusing to fund it.)   But, for those who like to envision apocalyptic scenarios besides alien invasion or the dangers of asteroids, think of the following:

There are indeed three or four serious candidates for the presidency this fall, perhaps Trump, Clinton, Gary Johnson of the Libertarian Party., and Mitt Romney for the "Establishment GOP"."  Clinton will clearly get more votes than any of the other candidates, but, of course, that doesn't matter.  The electoral votes are the only thing that matters.  So would the losers accept the verdict if someone other than Clinton got an electoral vote majority, even as she has received far more popular votes (and was in fact the second choice of most of the Romney voters)?  And would it matter if, say, North Carolina's or Arizona's electoral votes went to Trump quite clearly because of successful efforts by the Republicans who control those states to suppress likely Democratic votes? Why in the world should Democrats treat that outcome as "legitimate"?  Talk about "rioting in the streets"! 

But wait, there's more.  Imagine that Clinton, with a clear plurality, perhaps even a solid majority of the popular vote, doesn't cobble together the necessary majority, but no one else does either, because, say, Romney manages to carry Utah, while Gary Johnson slips into first place in New Hampshire and Alaska. Then, of course, our 1787 Constitution says that the House must choose, on a one-state, one-vote basis (i.e. equal voting power for Wyoming and California) among the top three candidates, for the presidency, while the Senate chooses between the top two vice presidential candidates for that office.  It remains relatively likely that the next House will continue to have a majority of Republican delegations, even if, unexpectedly, the Democrats do well enough to recapture the House by, say, sweeping some of the large states.  So would it be legitimate if, say, the Republican House chose Mitt, who came in third with 10 electoral votes (while Trump has 260 and Clinton has 268 votes, respectively)?  I presume that there would be conjoint rioting in the streets among Trump reporters on one side of the street and Democrats on the other.  And, of course, what if the now-Democratic Senate chose Julian Castro to be VP (over, say, John Kasich, Mitt's running mate)?  Or, to finish off the list of possibilities, assume that Clinton, who gets only, say, 43% of the popular vote (the same percentage as her husband in 1992), in fact gets a majority of the electoral vote because, say, Mitt and/or Johnson got enough votes to deprive Trump of a presumptive victory in some key states.  Would Trumpists accept that as a legitimate outcome.

This particular scenario, as suggested , doesn't depend on asteroids or even terrorist attacks.  All that has to happen is for the 1787 Constitution (as amended in 1803) to work "as designed."  The crisis would not be "constitutional breakdown," as when the clear requirements of the Constitution are violated, but rather a genuine and altogether justified crisis of legitimacy when the sheer indefensible stupidity of the Constitution is revealed in all of its glory.   This probably won't happen, of course, but I suspect that the likelihood is higher (say, 5%) than is the threat of a truly serious terrorist attack in the US in the next six months.  Every politician thinks it necessary to "have a plan" to forestall the latter, none seems even interested in discussing the former.  Alas....
Posted 5:44 PM by Sandy Levinson [link]