Balkinization: Crisis? What Crisis?

Crisis? What Crisis?

Stephen Griffin

The Vox story recommended below struck a particular nerve with me. So I will record my disagreement, at least from a methodological perspective, with some of the views expressed by the various eminent scholars consulted in the well-reported story about how to tell whether we are in a constitutional crisis. I engaged with Keith Whittington on this question long ago on the Law courts list. That’s because Keith took issue with the discussion of constitutional crises in my first book American Constitutionalism. I followed up by replying in Long Wars and the Constitution and in a short article taken from Long Wars which can be accessed here. So, from my perspective, here we go again.

Two general observations. Constitutional crises are historical events and I hope we can agree that they are best studied as history, that is, taking into consideration the self-conscious understanding of the participants. I think it sensibly follows that it is best to proceed inductively, by examining widely agreed-on instances of constitutional crises to build a theory about what they are and why they occur. But this pretty clearly puts me at odds methodologically with Keith, who would rather proceed from first premises.

And I do agree with the scholars consulted that the current situation doesn’t count as a constitutional crisis (subject to the comments below and see this article referencing a “governing crisis” in the Trump administration).

Nevertheless, something is a bit off with the views expressed in the article. After reading it you might well wonder whether there were any constitutional crises at all in the twentieth century, at least after the 1957 Little Rock crisis. I didn’t see a reference to the 1937 confrontation between FDR and the Court, Watergate, and Iran-contra. They were certainly perceived as crises at the time which from my perspective makes them canonical. Any theory of constitutional crises thus has to account for them. Consider that the scholars consulted agree that if President Trump were to defy a federal court order, that would probably qualify as a constitutional crisis. But what if the president leads a criminal conspiracy to discredit his opposition and stay in office? That doesn’t count? For these scholars, Watergate is reduced to whether Nixon defied the Court in the wake of the ruling in US v. Nixon (he didn’t). But as I detail in Long Wars, Watergate was a crisis long before July 1974.

So let’s restart.

In American Constitutionalism, I argued that constitutional crises in American history are typically characterized by a state of fundamental uncertainty. Surely stability is a key goal of any constitution and it is certainly a quality attributed to the U.S. Constitution. In constitutional crises, however, the Constitution’s normal polarity reverses and unexpectedly injects instability and uncertainty into daily politics. The secure framework for politics the Constitution normally provides looks increasingly shaky. People begin to feel nervous about what should be standard government operations. By the way, feeling a bit queasy these days? Without question, many Americans are.

Now in any given crisis, you might think that it is the officials running the institutions that are the problem, not the Constitution itself. But what do you think the Constitution is? It is this question that lies at the heart of many conundrums in constitutional theory, including how to understand constitutional crises. If the Constitution is implemented or enforced through institutions, then the operation of those institutions will tend to determine what the Constitution is in a practical sense. In other words, I think it is more useful to see constitutional crises as generated internally rather than externally. To be sure, the country might be invaded and we might only then discover that the government lacked the power to respond because of some flaw in the Constitution. But history shows that this is unlikely.

Look again at the current situation. One plausible path for analysis unmentioned in the Vox article is that Trump himself, the fact that he could get elected at this moment in American history, is the crisis. Trump is the crisis. After all, he is plausibly the “chaos president” so ably described by Jeb Bush. If he is, no good will come of this. But the views expressed by scholars in the article seem to be “externalist.” They portray Trump in a bumper car, as it were, bouncing off a black box called the Constitution. Checks and balances save the day. But where did Trump come from?

In American Constitutionalism I proposed that it is appropriate to use the word “crisis” in a situation in which the apparently normal operation of the constitutional system indicates “that something is fundamentally wrong with the way the system is operating as a whole.” I went on to raise the issue of the decline in political trust, referencing Ross Perot’s surprising showing in the 1992 election, saying “The emergence of a significant group of citizens who are profoundly alienated from politics and government and feel powerless to affect ostensibly democratic institutions is the most disturbing aspect of the contemporary constitutional system.” I’m feeling pretty good about this 20-year-old analysis in light of the populist insurgency which is hammering both political parties today. It is noteworthy that John Judis similarly refers to the reemergence of the “middle American radical” in his trenchant analysis in The Populist Explosion.

We should be alive to the possibility that a candidate like Trump could emerge only after a period in which the Constitution was misfiring, whether you want to call it gridlock or not. For some time, we have been ripe for a crisis of trust. As I argue in Broken Trust, government institutions need trust to reproduce themselves (and their norms) effectively across time. Continual low trust in government seems to have caught up with us. Even if some legitimate process removes Trump before his four years are up, we are in deep trouble. And yes, it is constitutional trouble (although, perhaps, not quite a crisis yet!).

Posted 12:37 PM by Stephen Griffin [link]