Balkinization: The "Constitutional Crisis" Has Finally Arrived

The "Constitutional Crisis" Has Finally Arrived

Sandy Levinson

In 2009, Jack Balkin and I published an article in the University of Pennsylvania Law Review on “constitutional crises.” Drawing on Machiavelli’s analysis of the ancient Roman constitution, we identified two basic forms of crisis. The first occurred when a political leader openly defied the law; the second, on the other hand, was typified by an almost thoughtless adherence to the law even when catastrophe threatened.

As a matter of fact, American presidents—our main interest—have rarely if ever done the first. Abraham Lincoln came close during the Civil War, but he always presented arguments, whether convincing or not, justifying his actions as constitutional. His successors have similarly claimed that whatever they were doing was in fact constitutional. No president has anything to gain by declaring himself to have ignored the Constitution, whatever onlookers might believe.

Ironically, perhaps the best example of the second kind of crisis was provided by Lincoln’s predecessor, James Buchanan, who agreed that secession was unconstitutional. However, he argued in his Final Message to Congress in December 1860 that the national government was without the constitutional power to prevent the withdrawal of states from the Union. As he put it, “The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force.” One might analogize this to Donald Trump’s proclaiming that the United States has a problem with immigration, but, alas, the national government has no powers to do anything about it!

We went on to suggest, however, the possibility of a a third type of constitutional crisis, in which we focused less on what “leaders” did (or did not do) and more on “the people” themselves. That is, would a significant cohort of Americans take to the streets in violent protest against the legitimacy of governmental action or, for that matter, inaction deemed legally compelled even in the consequence was catastrophe? Appeals to “law and order” would be rejected as coming from a government that had lost its right to demand obedience.

            As a matter of fact, Donald Trump, for all of his bluster, has never once openly defied the law (save, perhaps, for the obscure “emoluments clause” prohibiting private profiteering by governmental officials, though even there he can cite respected lawyers who argue, convincingly or not, that the Clause does not apply to the President). As is often said with regard to questionable behavior, the scandal is very often what is legal. One might instead say, altogether accurately, that Trump fiddled while Rome (or the United States) burnt during the Covid-19 crisis,. One might even argue that his reckless refusal to wear a mask, plus his cynical attempts to brush away the threat presented by the virus, makes his responsible, in a significant way, for many deaths that might otherwise not have occurred. Still, Donald Trump never argued, as did Buchanan, that the Constitution left him without power to act and to protect the country. So Trump’s presidency was, from Day One, a “political crisis” along various dimensions but not really a “constitutional crisis” save, perhaps, for revealing some significant problems with the Constitution itself. To say that the Constitution is the crisis, as is my wont, is to take an "external perspective" evaluating the Constitution against other criteria. Usually, though, the term "constitutional crisis" is an "internalist" argument, in which one argues that some actions (or inactions) violate the Constitution, correctly understood. This difference is clearly illustrated by what is are now the two impeachments. Impeachment is clearly set out in the Constitution as a possible response to perceived presidential miscreance. A president threatened with impeachment, whether Richard Nixon, Bill Clinton, or Donald Trump, may indeed be caught up in a genuine political crisis, but the country cannot accurately be said to be facing a constitutional crisis.

            What happened in Washington on January 6, though, does seem to be what Jack and I termed a “type 3 constitutional crisis.” It featured a rampage by American citizens, goaded by Donald Trump but enabled as well—and as importantly—by many other Republicans, including Josh Hawley and Ted Cruz from the Senate. They joined in rejecting the most basic single feature of the American constitutional order, expressed by Lincoln himself: We settle our political differences by ballots and not bullets, unless, of course, we view the winners as the equivalent of the Nazis who came to power, legally, in the German elections of 1933. In the absence of such extreme circumstances, however, those who lose elections, however disappointed they may be, must accept the results rather than suggest their overturning through patently preposterous procedural arguments. Still, if one wants to be maximally generous to Hawley and Cruz, who deserve no such generosity given their sheer cynicism, one can say that they did not call for overthrowing the Constitution, but, instead, that they demonstrated through the arguments exactly how dangerous the electoral college system is with regard to the opportunity, should it be seized, for state legislatures or even Congress itself to overthrow the results of fair elections. That, of course, is an argument for eliminating the electoral college, the subject of an earlier symposium on Balkinization, which need not be rehearsed here.

   No serious person doubts that the November election operated fairly. Not a single significant instance of “fraud” has been substantiated. The President and his supporters, including the Yale Law School-educated Hawley and Harvard Law School-alumnus Cruz are the equivalent of Holocaust deniers relying on the "scholarship" of David Irving to support their claims. It is not only that they live, in Kelly Ann Conway’s unforgettable term, a world of “alternative facts”; at least as important, and more relevant to the notion of “constitutional crisis,” is that they also reject the notion that we must bend to the decisions of authoritative institutions, including courts and even the Congress of the United States, in order to settle disputes about the facts—did fraud occur?—or the law. As a matter of fact, one may doubt that they actually join Trump in his parallel universe of belief that he won the election in a landslide. Instead, given their demonstrated academic successes, it is far more likely that they made thoroughly calculated, and altogether despicable, decisions to pander to the most deplorable aspect of the Trumpista base in order to gain traction for their presidential runs in 2024. One might hope that those hopes have been demolished forever.

            American secession from the British Empire was itself a constitutional crisis inasmuch as “patriots” like Jefferson and Hamilton rejected the legitimacy of Parliamentary legislation or, concomitantly, the authority of so-called “crown judges” to pronounce their acts of rebellion to be illegal (or, indeed, “treasonous”). Obviously the “patriots” won, and a new constitutional order was created. No doubt many of those who besieged the United States Capitol view themselves as “patriots” resisting an illegitimate election. Most of us, correctly, believe they are wrong, that the election was completely legitimate and the results, as argued by Sen. Mitch McConnell in his opening speech on the 6^th, to be accepted.

            It is premature to assess the deeper meanings of what is now last week’s events. (Recall that Zhou en-Lai, when asked about the consequences of the French Revolution, is said to have responded that it was too early to tell, though it has been suggested that what he was really referring to was the French student protests of 1968, which did, after all, succeed in getting rid of Charles de Gaulle as President.) As a matter of fact, the raw number of protesters-insurrectionists was not, in a country of 330 million people, particularly impressive, and the response to their insurrectionary behavior has scarcely been supportive. Wednesday may turn out to be a dramatic one-off, awakening, especially, at least some members of the Republican Party to the dangers presented by Trumpista deplorables. No doubt many within the GOP are privately shaken by declarations by various business leaders, including the national Chamber of Commerce, that they will no longer contribute to those Republicans in the House and the Senate who joined in challenging the legitimacy of the election. (One wonders if that hesitation will extend to those who vote against Trump's impeachment.).

But that does not mean that we are not currently experiencing a genuine “constitutional crisis”—quite independent of the decision whether to impeach and convict Donald Trump—that must be addressed by those who purport to be the “leaders” of our constitutional order. Nothing that Congress does in itself will itself dampen the flames set by Trump and his enablers, especially if their response to a justified impeachment and (perhaps unlikely) conviction and declaration of ineligibility ever again to hold public office is simply to feed their narrative of a “lost” country that must be “taken back” by force and violence.

Neither Appomattox nor Grant's victory in 1868 was sufficient to still the insurgency typified by the Ku Klux Klan, after all. Nor, for that matter, could Robert E. Lee's calls for national unity overcome his former colleagues who preferred to continue the conflict. And one might say, of course, that they basically achieved victory following 1877 and the full triumph, by the turn of the century, of Jim Crow and disenfrachisement of African-Americans. It may be that more important than the courageous attack by Wyoming Representative Liz Cheney on Trump will be whether Fox News, which has been happy to served as the Pravda-like arm of Trump and Trumpism for the past four years, will, perhaps like the Wall Street Journal, conclude that it must in effect cut its ties with Trump and the insurrectionists and freely admit that Joseph Biden is not only the new president, but legitimately so.

Perhaps we will look back on January 6, as was my initial view, as a piece of “political theater” or performance art conducted by a notably undisciplined mob. I am less confident even a week later that is the case, especially as more evidence emerges of the true violence engaged in by the mob, as well as of possibilities that there was more coordination and less spontaneity than first appeared. (It's just too early to offer any confident conclusions!). And, of course, the sociopathic Donald Trump, as is his wont, expresses no remorse whatsoever for his role in instigating mob violence and, even more to the point, continues to live in a delusionary universe where he is the victim of a conspiracy committed to denying the “reality” of a landslide victory. At this particular moment, to paraphrase Bertolt Brecht, anyone who is complacent has not yet heard the news.

Posted 9:51 PM by Sandy Levinson [link]