For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).
Khiara M. Bridges
Balkin argues that although the past four years have been equal parts surreal, chaotic, and maddening, they have never laid claim to a constitutional crisis. According to Balkin, we did not enter a constitutional crisis when the Trump administration ineptly rolled out its travel ban in early 2017 and created impromptu detention camps in airports across the nation. Neither did we enter a constitutional crisis in mid-2017 when Trump fired the director of the FBI, James Comey, who appeared to be competently investigating claims that Trump had colluded with Russia to secure an election victory. Balkin contends that none of the numerous episodes in the past four years that have convinced scores of reasonable people that this country is on its last legs have been a constitutional crisis. Balkin’s conclusion, of course, follows directly from his definition of constitutional crisis.
Balkin
defines a constitutional crisis as an event that demonstrates that we have
“reach[ed] a point in which the Constitution is about to fail, or has already
failed, at its central task – of making politics possible” (39). He identifies
three moments in which constitutional failure, and a constitutional crisis,
occurs:
The
first is when political officials—including, most distressingly, the President—“simply
announce that they will no longer abide by the rules of the Constitution. Political leaders—or military leaders—might argue that
things have gotten so bad and the country has strayed so far off course that
they can no longer possibly stay within the boundaries of the Constitution.”
(38) This, of course, has not happened in the last four years. Indeed, this
type of constitutional crisis has rarely happened in the history of the nation
because it requires more than a violation of the Constitution by a political
official. Rather, in Balkin’s formulation, the official also has to admit that he is violating the
Constitution. Further, no lawyer has to be willing to argue that the official’s
action does not amount to a
constitutional violation. In Balkin’s words, this iteration of constitutional
crisis is a rarity because “lawyers are usually able
to come up with creative interpretations so that politicians can assert that
they are being faithful to the Constitution; at that point the dispute becomes
a conflict over interpretation that is settled either in the courts or through
the give and take of ordinary politics” (39). So, Trump’s having avoided a
constitutional crisis during his presidency is due to his willingness to lie (and
lie and lie) about having violated the Constitution, in some cases, and his
utter obliviousness as to what the Constitution requires, in other cases. And, of
course, if ever he is forthright about having broken a rule or five, there is
always an apologist with a JD who is willing to argue otherwise.
According to Balkin, the second type of constitutional failure
occurs “when everybody thinks that they are following the Constitution, and the
result is disaster” (39). This failure occurs when the Constitution demands
that people act in a way (or fail to act at all), and disaster ensues. It also
occurs when people believe that the Constitution offers no guidance for how to
deal with an issue, and disaster ensues because no one deals with the issue. Balkin
notes that, due to the expansiveness of the human imagination, this type of
constitutional crisis almost never happens. “When people find themselves in a
predicament … they will usually be able to reinterpret the Constitution to get
out of the predicament” (39).
The third type of constitutional crisis that Balkin identifies is the
one that is most interesting to me. He writes that this iteration of
constitutional crisis occurs
when people disagree about what the Constitution means, and they disagree so strongly that they do not simply confine themselves to legislative votes and litigation, or to op-eds, tweets, press conferences, and protests. Instead, they take to the streets and riot. They engage in violence. They engage in secession. Or they engage in civil war. Now that’s a constitutional crisis. The Constitution has failed to keep political struggle within its proper boundaries—that is to say, within the boundaries of political competition set by the Constitution. (39).
I’m
interested here in the categories that Balkin draws. Balkin identifies a
category of miscellanea that do not evidence crisis, but rather ordinary
politics: “legislative votes and litigation,” “op-eds, tweets, press
conferences”… and also “protests.”
And there is another category of miscellanea that do not evidence ordinary
politics, but rather constitutional crisis: “secession” and “civil war,” but
also “riot[s]” and “violence.” These mutually exclusive
categories prompt two sets of questions.
First:
what is a “protest”? What is a “riot”? What is “violence”? Where is the line
between “protests” and “riots”/“violence”?
Second:
if something is not ordinary politics—when it evidences constitutional crisis—what
exactly is its relationship to politics? Is it outside the realm of the
political?
Early in summer 2020, a white police
officer in Minneapolis, Derek Chauvin, kneeled on the neck of George Floyd, a
black man, for close to nine minutes. Floyd died. Many people—especially black
people—understood Chauvin’s execution of Floyd to be a synecdoche for the
brutal racial hierarchy that currently exists in the United States. They
believed that, surely, the Constitution does not condone racial oppression. They
took to the streets to demand the dismantling of the various systems that kill
black people and reduce the quality of their lives. They stayed in the streets
for days that became weeks that became months. In the course of those days,
weeks, and months, property was destroyed. Lives were also lost. The events
made some people long nostalgically for the days when demonstrations over racial
injustice took the form of a professional football player quietly taking a knee
during the national anthem.
So, Balkin dichotomizes “protests”
and “riots”/”violence.” I am ultimately uninterested in inquiring into Balkin’s
understanding of “riot” because “riot” is usually a conclusion. It is the
user’s way of condemning the thing being described. Compare Fox News’
characterization of this summer’s demonstrations with that of, say, the
Intercept. The detractor’s “riot” is the empathizer’s “uprising” or “rebellion.”
More interestingly, Balkin situates
“protests” in opposition to “violence.” What then is “violence”? We have to
know what “violence” is so that we can know when we have left the world of
“protest” and ordinary politics and arrived in a world of constitutional
crisis. When people who have taken to the streets in outrage over an inhumane
racial hierarchy smash windows out of buildings, is that “violence”? When they
set fire to a building, or a police car, is that “violence”? I feel confident
that when they kill, that is “violence.” My question, instead, is about the
demonstrations that have resulted in no loss of life, but rather in loss of
property. Are those demonstrations not “protests,” but rather “violence”?
I should out myself and admit that I
tend to have a fairly capacious understanding of violence. I believe that
poverty is violence. I believe that putting millions of people in cages as
“punishment” is violence. I believe that allowing black people to die from
pregnancy-related causes at three to four times the rate of their white
counterparts is violence. I believe that passing immigration laws that render
millions of people “illegal” and, therefore, exploitable is violence. I see
violence everywhere in an unjust social order. Consequently, I am comfortable
concluding that demonstrations against racial injustice that result in loss of
property are “violent.”
As
“violent,” then, what is their relationship to the political? According to
Balkin, the violence that characterizes the demonstrations banishes them from
the realm of ordinary politics. So, what are they? Are they extraordinary politics—a category of politics
that Balkin does not theorize in his book? My worry is that Balkin imagines
that because some demonstrations have been violent, they are no longer part of
politics. Instead, they are outside the ambit of political discourse.
I
believe that the demonstrations that we have witnessed this summer evidence a
constitutional crisis. They indicate a constitutional crisis because, in
Balkin’s words, “the constitution has not channel[ed]
disagreement and dispute into peaceful solutions” (40). Activists for racial
justice have engaged in all manner of peaceful, ordinary politics. We have
pursued legislation and litigation. We have written op-eds. We have tweeted.
(Oh, how we have tweeted.) We have held press conferences. We most certainly have
protested. But, people of color are still being killed.
Balkin likely would agree with me up to this point. But, where our agreement
ends, I believe, is with my conclusion that the demonstrations, albeit violent,
remain political. They are a form of political discourse—pursued as a last
resort by people whom ordinary politics have failed. To arrive at this
conclusion is to conclude that violence has a place in politics. This is a
conclusion that will make many uncomfortable. But, hopefully, this discomfort
pales in comparison with the discomfort produced by simply knowing that one
lives in a country that has fallen so embarrassingly short of the commitments
to equality contained in its Constitution.
Khiara M. Bridges is Professor of Law at UC Berkeley School of Law. You can reach her by e-mail at khiara.m.bridges@berkeley.edu