How to tell if you are in a constitutional crisis

JB

Because Donald Trump is very unpopular, and because he is doing things that his opponents consider outrageous, his critics have begun to use the term "constitutional crisis."  Sandy Levinson and I wrote an article about constitutional crises in 2009. What follows is a brief explanation of the term and why it is so likely to be misused.

A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task. The central task of constitutions is to keep disagreement within the boundaries of ordinary politics rather than breaking down into anarchy, violence, or civil war.  To be sure, constitutions are also valuable because they protect civil liberties and divide and restrain power; but their first job is to keep the peace and make people struggle with each other within politics rather than outside of it.

Constitutional crises come in three types. In the first kind, politicians (or military officials) announce that they won't obey the Constitution. In our system of government, government officials are supposed to obey judicial orders specifically directed to them. (That is true even if they believe that the judge has interpreted the law incorrectly.) Therefore defying a direct judicial order would also be tantamount to precipitating a constitutional crisis. When government officials (or the military) publicly announce that they will no longer play by the rules of the Constitution, the Constitution has failed. Constitutional crises of this type are very rare in American history.

Second, the Constitution might fail because it keeps political actors from preventing a looming disaster. These situations are even rarer because political actors (and the courts) usually conclude that the Constitution allows them to escape disaster.

Third, a constitution might fail because lots of people refuse to obey it-- there are riots in the streets, states secede from the Union, the army refuses to obey civilian control, and so on.

When people are upset at what government officials have done, they often call these actions constitutional crises. However, most of these situations aren't really constitutional crises, because there is no real danger that the Constitution is about to break down.  The vast majority of uses of the term "constitutional crisis" are hyperbole.

Sometimes when people call something a constitutional crisis, they really mean that there is a heated dispute about the best interpretation of the law or the Constitution, and that their political opponents are interpreting the law or the Constitution in the wrong way. That in itself, however, is not a constitutional crisis, because disputes about the best interpretation of the law and of the Constitution are a normal feature of American politics. Many, but not all of those disputes, are eventually settled in the courts. Others are settled through politics. Settlement of serious disputes through the courts or politics is not a constitutional crisis. It is how a constitution is supposed to work.

Sometimes what people call constitutional crises are really what Mark Tushnet has called "constitutional hardball." This is a situation in which political actors stretch or defy political conventions that were previously considered unspoken rules of fair play in politics but were not clearly legally required. People who engage in hardball tactics deliberately violate old norms in order to create new ones and gain a political advantage. This often causes outrage and leads to reprisals in politics. The Republican-controlled Senate's refusal to hold a hearing for anyone President Obama nominated to the Supreme Court in his last year in office was an example of constitutional hardball. The Republican strategy violated what Democrats believed were unspoken norms of political fair play, and it will likely shape how Democrats behave in the future. What happened was not, however, a constitutional crisis.

A more accurate use of the term "constitutional crisis" involves situations in which people reasonably fear that the Constitution will fail in one of the three ways I've just described, even though the breaking point hasn't yet occurred. A constitution that is on the brink of failure is a constitution in crisis.

If President Richard Nixon had refused to obey the Supreme Court's order to surrender the Watergate tapes in 1974, he would have precipitated a constitutional crisis of the first type. People feared that Nixon wouldn't obey, and so one could say that this was a moment of constitutional crisis. Ultimately, however, he did obey the judicial order, and the potential crisis was averted.

Probably the most important constitutional crisis in the nation's history was the secession of the southern states and the resulting Civil War. This was a crisis of the first type and the third type. Politicians and military officials openly stated that they would refuse to play by the rules of the Constitution and states seceded from the Union, and then resisted through violence.  That constitutional crisis resulted in enormous bloodshed and suffering, and required the Constitution to be reconstructed with three new amendments.

A constitutional crisis is a very serious thing, because if we were in the middle of a genuine constitutional crisis, there would be a real and serious danger that the Constitution would fail. But, as noted above, most things that people call constitutional crises don't involve serious threats of constitutional failure. In general, one should not confuse heated constitutional disputes with constitutional crises. Similarly, one should not confuse political crises--in which people struggle for power within the limits of the Constitution--with constitutional crises, in which the Constitution itself fails or is on the verge of failing.

When people talk about constitutional crisis in the Trump Administration, the first thing that they might have in mind is the flurry of executive orders that began his presidency, and, in particular, his executive order on immigration, which is sometimes called a "Muslim ban."

The executive order on immigration is very unjust, and there are good arguments that it is unconstitutional. But it has not precipitated a constitutional crisis. The courts often find that the Executive Branch of the United States government has violated the law or the Constitution, but that doesn't make each of these situations a constitutional crisis.

On the other hand, if President Trump ordered executive branch officials to defy judicial orders, and they did so, not merely in isolated instances out of confusion, but deliberately and consistently, that could precipitate a constitutional crisis. There have been reports that a few DHS officials have been obstructing the enforcement of district court orders, but we don't know how serious the situation is and so it is premature to say that we have a genuine constitutional crisis on our hands. If President Trump announced that he would not follow the Constitution, if he arrested members of the Supreme Court, or if he defied a direct judicial order, that would mark a constitutional crisis.

As Sandy and I pointed out in our original piece, American politicians almost never announce that they will go outside the Constitution or the law. Instead, they argue that they are complying with the law based on their interpretation of it.

One might object that this allows politicians to violate the Constitution if they just lie about their motivations or if their legal positions are objectively unreasonable. But there is a reason why forcing politicians to state their positions in terms of legality and constitutionality is important to constitutional government. This means that they are still publicly adhering to a political norm that everyone must obey the law and the Constitution. When politicians obey this norm, it drives controversies back into the courts or into ordinary politics for resolution. Achieving this result is what constitutions are supposed to do. To be sure, when people argue about what the law means or what the Constitution means, it is often very upsetting, because politicians often have incentives to make specious or disingenuous claims to justify their actions. But as long as the courts are open and are obeyed, this by itself does not produce a constitutional crisis.

Crisis is not the same thing as injustice. There are a lot of unjust things that happen in a constitutional system without precipitating a constitutional crisis. Constitutions make politics possible, and politics is often unjust.

You can tell if you are in a constitutional crisis when politicians stop saying that they will comply with the law, with judicial orders, or with the Constitution. Or you can tell that you are in a constitutional crisis when there is widespread civil unrest or rebellion.  Until that happens, you are not in a constitutional crisis, and for that, at least, you can be thankful.
Posted 8:05 AM by JB [link]