Monday, May 15, 2017

Constitutional Rot and Constitutional Crisis


No one could accuse Donald Trump’s presidency of being boring.  The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Every time Trump does something remarkable, like the recent firing of Director James Comey, pundits ask whether we are in a constitutional crisis.

However, as I noted in a previous post, constitutional crisis refers to something different: A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task of keeping disagreement within the boundaries of ordinary politics instead of breaking down into lawlessness, anarchy, violence, or civil war.

As Sandy Levinson and I have explained, there are three types of constitutional crises. In Type One crises, political leaders announce that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them. In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster. In Type Three crises, political disagreement about the Constitution becomes so intense that the struggle goes beyond the bounds of ordinary politics. People take to the streets; there are riots; the military is called out to restore order (or suppress dissent); political figures threaten violence or engage in political violence; or parts of the country revolt and/or attempt to secede,

Constitutional crisis is very rare, and nothing that has yet happened in the Trump Administration -- including the Comey firing-- comes even close. But people are right to think that something important-- and dangerous--is happening to our political institutions.  That is why, I think, people so often reach for the term "constitutional crisis" to describe it.

In this essay, I want to introduce a new idea to explain our current predicament. I will distinguish constitutional crisis, which is very rare, from a different phenomenon, which I think better describes what is happening in the United States today. This is the idea of constitutional rot.

Although the Comey firing is not an example of constitutional crisis, it is an example of constitutional rot.  For this reason, people are right to worry about it.

 I. Constitutional Rot: Decay in the Norms and Institutions that Support Democracy

What is the difference between constitutional crisis and constitutional rot? Constitutional crisis could, in theory, happen to any constitution; constitutional rot is a specific malady of constitutions of representative democracies—that is, republics. Constitutional crisis occurs during relatively brief periods of time; constitutional rot is a degradation of constitutional norms that may operate over long periods of time.

What is constitutional rot? Democratic constitutions depend on more than obedience to law. They depend on well-functioning institutions that balance and check power and ambition. These include not only public institutions but institutions of civil society like the press.

Next, democracies depend on the public’s trust that government officials will exercise power in the public interest and not for their own personal benefit or for the benefit of private interests and cronies.

Democracies also depend on forbearance on the part of public officials in their assertions of power, and obedience to norms of fair political competition. These norms prevent ambitious politicians from overreaching and undermining public trust. These norms help to promote cooperation between political opponents and factions even when they disagree strongly about how to govern the country. Finally, these norms prevent politicians from privileging short term political gains over long term injuries to the health of the constitutional system.

When politicians disregard norms of fair political competition, undermine public trust, and repeatedly overreach by using constitutional hardball to rig the system in their favor, they cause the system of democratic (and republican) constitutionalism to decay. This is the phenomenon of constitutional rot.

The idea of constitutional rot is very old. The political theory of republicanism familiar to Constitution’s founders asserted that republics were delicate institutions that were always susceptible to decay and corruption over time.   Time was the great enemy of republics, because ever-changing circumstances, and the driving force of people’s ambitions and desire for power would open the door to—if not encourage—multiple forms of institutional corruption. In modern democratic republics, this institutional corruption is a version of constitutional rot.

II. The Dangers of Constitutional Rot

Constitutional rot creates two serious risks to democratic politics. First, by playing too much hardball, demonizing their opposition, and attempting to crush those who stand in their way, political actors risk increasing and widening cycles of retribution from their opponents. This may lead to deadlock and a political system that is increasingly unable to govern effectively.

Second, undermining or destroying norms of political fair play and using hardball tactics to preempt political competition may produce a gradual descent into authoritarian or autocratic politics.  Such states may preserve the empty form of representative democracy—they may have written constitutions and regular elections; and they may adhere for the most part to the rule of law formalities. But power is increasingly concentrated and unaccountable; the press, civil society, political opponents, civil servants and the judiciary no longer serve as independent checks on the power of the people in charge. Indeed, political leaders may systematically seek to weaken or co-opt each of these possible sources of opposition. These features of constitutional rot are likely to lead to increasing corruption, overreaching, and suppression of basic liberties. Regimes that slide into autocracy or authoritarianism may not suffer constitutional crises in the sense that they are politically stable and successfully avoid civil unrest or civil war. But they have failed as democratic constitutional systems; increasingly they are democracies in name only.

Obviously these two risks—deadlock and descent into autocracy—are related.  A system that has become so deadlocked that politics seems futile may lead to the election of demagogues and authoritarian minded politicians who undermine democratic norms and lead a nation toward autocracy.

There are important literatures emerging on these questions in political science, including the study of hybrid regimes that split the difference between autocracy and democracy, and the phenomenon of democratic backsliding, which we have seen in places like Hungary and Turkey. This January, Tom Ginsburg and Aziz Huq, writing on this blog, offered an account of what they call constitutional retrogression.  (This is an opening statement of a larger project they are working on, How to Lose a Constitutional Democracy.) All of these ideas are related to what I am calling constitutional rot.

Lest I be misunderstood, I am not claiming that the United States has already slid into autocracy, or that we have already produced anything like the democratic backsliding we see in Hungary or Turkey.  Our institutions remain far more robust. And indeed, as the incurable optimist that I am, I believe that our democratic institutions are resilient enough to push back against the depredations of a demagogue like Trump. But what many Americans increasingly sense, I think, is that our democratic institutions are decaying and/or are under assault.  If nothing is done to halt the decay, we will eventually be in very big trouble.

III. How Constitutional Rot Relates to Constitutional Crisis

What is the relationship between constitutional crisis and constitutional rot?  The two phenomena are not identical. As noted above, the question of constitutional crisis concerns whether the constitutional system can perform its central function of making politics possible—keeping struggles for power within politics and preventing violence, insurrection, and civil war.  The three types of constitutional crises listed above can occur in many different kinds of systems, whether democratic or not.  Constitutional rot, by contrast, is a feature of constitutional democracies and republics—it concerns how these systems degrade into deadlock and despair on the one hand, or into authoritarianism and autocracy on the other.
There is another important distinction. The idea of “crisis” refers to a crucial moment in time—usually rather brief in duration—in which the constitutional system will adequately respond to a challenge, be undermined, or be successfully reconstituted.  Constitutional rot, by contrast, is often a long and slow process of change and debilitation, which may be the work of many hands over many years.  Crisis seems to come upon us suddenly—it focuses everyone’s attention on the spectacle.  Rot develops slowly and gradually and may be imperceptible in its earliest stages; sometimes features of constitutional rot are obvious, but sometimes they operate quietly in the background.

Even so, the two phenomena are connected.  Continued constitutional rot in a democratic system may be the harbinger of a constitutional crisis years later.  In his 2015 book, Broken Trust: Dysfunctional Government and Constitutional Reform, Steven Griffin has argued that the most important source of constitutional dysfunction in the United States is increasing loss of public trust among citizens. This loss of trust did not occur overnight; it is the result of decades of fateful decisions by political actors seeking short-term political success, stoking political polarization to win elections, and playing political hardball to lock in greater power and reduced accountability.  Griffin regards this as a sort of “slow-motion” constitutional crisis. I would say that it is a description of constitutional rot.

Constitutional rot in a democracy need not always lead to constitutional crisis. It might simply lead to a less just and less democratic system of government. This is what happens in slides to autocracy. Nevertheless, constitutional rot, if unchecked, can lead to a constitutional crisis, just as placing increasing weight on a rotten tree branch can eventually cause it to snap. Indeed, constitutional rot can lead to any one of the three types of constitutional crisis that Levinson and I described.

Politicians may publicly reject constitutional obligations. (Type One). The system may suffer severe crises of governance in which the state is unable to perform basic functions (Type Two).  Finally, loss of public trust combined with the rise of political opportunists and demagogues who stoke anger and resentment in their followers (or in their opponents) may produce cycles of political violence, or even insurrection (Type Three).

Constitutional rot, in other words, can eventually cause a democratic constitution to fail both as a *democratic* constitution—because the system degenerates into autocracy; and as a democratic *constitution*— because the constitution no longer can keep political disagreement within the bounds of law and peaceful political dispute.

My view is that we are not currently in a period of constitutional crisis. But for some time we have been in a period of increasing constitutional rot.  The election of a demagogue like Trump is evidence that our institutions have decayed, and judging by his presidential campaign and his first hundred days in office, Trump promises to accelerate the corruption.

IV. Understanding the Comey Firing in Terms of Constitutional Rot

Similarly, Trump’s firing of James Comey was not in itself a constitutional crisis, because the President legally has the authority to fire the FBI Director. It happened once before, when Bill Clinton fired Director William Sessions because of ethics violations. Comey’s firing is not a constitutional crisis. Trump has not asserted (for example) that he is deliberately acting outside the Constitution.

Rather, Comey’s firing is a symptom of constitutional rot, and people have been employing the language of constitutional crisis to describe it.  This problem, I think, is related to what Steven Griffin meant when he suggested that we are in a “slow motion” constitutional crisis, one ultimately caused by lack of public trust in government.

Many Americans no longer trust government to act in the public interest, and many politicians act in ways that encourage their lack of trust. President Trump has violated many preexisting political norms, and our increasingly polarized politics has caused the nation’s two political parties to push the envelope through various forms of constitutional hardball.  When people in power no longer hesitate to use their power to its fullest extent, and when norms of fair political competition are pushed aside, the viability of our democratic constitutional system is threatened.

The real concern about James Comey’s firing as FBI Director is best understood in terms of constitutional rot. The FBI director serves for a 10 year term that is designed to span across presidential terms in office. The goal is to insulate the head of the nation’s investigative service from political pressure by politicians—and especially the President, who always retains the power to remove the director. Thus, the technical legal rule that the President can fire the director is accompanied by a more amorphous democratic norm; namely, the norm that the president should hesitate to remove a director except for very good reasons, and that the President should not remove a director in circumstances in which it might appear that the President is pressuring the FBI to compromise its investigative authority for political reasons.
The Comey firing violates this democratic norm. The circumstances of the firing, as well as Trump’s own shifting explanations for it, suggest that Trump acted out of corrupt motives. The concern is that Trump fired Comey because Trump sought to hinder ongoing investigations into connections between the 2016 Trump presidential campaign and the Russian government,  or between criminal enterprises (like money laundering) involving Russian oligarchs and Trump’s businesses.  Democratic norms exist to prevent even the appearance of political corruption. The worry is that the norm was violated in circumstances that scream conflict of interest and create the appearance of corrupt motivations—that Trump used his powers as President to obstruct an ongoing criminal investigation. If one could prove Trump’s intent to obstruct the FBI’s investigations, this would constitute a violation of federal obstruction of justice laws, and very likely constitute an impeachable offense to boot.

Loss of trust brought Trump to power and loss of trust keeps him in power despite his incompetence and venality.  Loss of trust has exacerbated political polarization-- members of each party increasingly view the other as mortal enemies.  Polarization, in turn, sows increasing distrust, continuing the cycle.  Because of extreme polarization, Congressional Republicans feel they can't afford to abandon Trump, even though many of them understand that he is a demagogue and unfit to be President. If they stand up to Trump, they fear that their base will punish them, and that Democrats will take advantage of them. If they spend time investigating or blocking Trump, they also fear that their policy goals will be derailed and their donors will punish them as well.  Hence Republicans keep their mouths shut and continue to enable Trump.  The inability to act caused by polarization is a form of institutional rot, which creates a space for Trump to continue to violate constitutional norms.

* * * * *

Constitutional rot does not occur all at once; it is a gradual process. The constitutional system in the United States may well be able to survive even Donald Trump’s misadventures. But Trump’s demagogic rise, his conduct of the presidency, and the inability (or unwillingness) of members of Congress to stop him, are signs that all is not well in American constitutional democracy. To paraphrase Shakespeare, something is rotten in the state of America. The limbs of the great tree of state are decaying. At some point, if we put too much weight on our democratic institutions, they will snap. Then we really will be in a constitutional crisis.

The language of constitutional rot is a better way to understand people’s recurrent use of “constitutional crisis” in describing the Trump Administration. There is currently no actual constitutional crisis in the United States. But if constitutional rot continues, we are living on borrowed time.

[UPDATE: For more on the problem of constitutional rot, see my June 14th speech to the Yale Law School Alums, Trumping the Constitution.]

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