Wednesday, January 05, 2022

January 6th as a Constitutional Crisis


Over a decade ago, in a more innocent time, Sandy Levinson and I developed a definition and typology of constitutional crises. Essentially, constitutional crises occur when the Constitution is no longer able to keep struggles for power within the boundaries of the Constitution. In other words, constitutional crises occur when the Constitution fails at its central task of keeping struggles for power within the legal boundaries of politics that the Constitution creates and maintains.

Levinson and I describe three ways this might happen. In Type One crises, political leaders decide that they will no longer be bound by the Constitution, or they openly defy a direct judicial order. In Type Two crises, the Constitution makes it impossible to deal with a crisis or emergency (for example, it because blocks a necessary response), or the Constitution does not provide for dealing with the crisis or emergency, so that calamity results. (Type Two crises are rare because usually political leaders will interpret the Constitution to allow them a way out of the impasse.) In Type Three crises, disputes over the Constitution grow so heated that people no longer believe that protest and political organization within ordinary politics is sufficient. They engage in insurrection, states attempt to secede, the military stages a coup, or civil war breaks out.

Levinson and I also argue that if people reasonably believe that the Constitution is about to fail in one of the above three ways, that is also a constitutional crisis even if the event hasn't happened yet.

The January 6th insurrection was a Type Three crisis. People engaged in violence to prevent Congress from certifying Joe Biden's victory in the 2020 presidential election.

Was it also a Type One crisis? That depends on whether you believe that Trump and his allies decided to go outside the Constitution to remain in power.

If Trump incited the protesters at the Stop the Steal rally in order to prevent Congress from counting the Electoral College votes, or conspired to organize the protests to achieve the same result, he was attempting to subvert the Constitution, and that should also be a Type One crisis. (In fact, if he merely took advantage of the insurrection in order to sow chaos and prevent the counting of the electoral votes, he would also be trying to subvert the Constitution.)

Levinson and I have previously suggested that in a Type One crisis political leaders must openly declare that they are going outside the Constitution or defying the Supreme Court. But in light of the events of January 6th we should add that if a President plots in secret to subvert constitutional processes—and in particular to prevent a peaceful transition of power—it does not matter that the President does not declare his or her intentions publicly.

Trump's lawyer John Eastman hatched a plan by which Vice-President Pence would refuse to count certain electoral votes and either declare the election for Trump or throw the election into the House of Representatives, where Republicans controlled a majority of state delegations.

If Trump put Eastman's plan into motion, would this also constitute a Type One crisis? According to news reports, Eastman told Trump that his plan was perfectly constitutional. (Vice-President Pence disagreed.) Therefore Eastman and Trump might argue that this was a just a garden-variety dispute over constitutional interpretation, and therefore not a constitutional crisis. Levinson and I have argued that mere disagreements over the interpretation of the Constitution do not constitute a constitutional crisis as long as there is a way to resolve the dispute peacefully within the judicial or political system. Eastman might argue that this was precisely what was happening here.

But this argument conceives of the situation too narrowly. The question is not whether Eastman believed he had a colorable legal argument, but what people reasonably believed might happen if his scheme unfolded as planned.

First, people might reasonably believe that Eastman’s arguments were specious and frivolous, so that if Pence carried out the stunt at Trump’s instigation, the result would involve a deliberate attempt to subvert a constitutional process. (Type One).

Second, people might reasonably believe that the stunt would create a power vacuum that the Constitution did not provide for, which, in turn, would produce chaos and encourage foreign aggression (Type Two).

Finally, people might reasonably fear that if Biden and Trump claimed that the other had stolen the election, there was a real danger that the military might intervene, or that violence and civil war might break out. This would be a Type Three Crisis.

Thus, even if some of the participants asserted that there was nothing more than a disagreement over the best interpretation of the Constitution, there can still be a constitutional crisis depending on the larger context of the dispute. But note that this analysis requires that we can tell when people have a reasonable fear of constitutional failure. In a highly politically charged environment, that question, too, will be disputed.

A second important question is whether the constitutional crisis that occurred on January 6th, 2021 is over. That depends on what you think the crisis was. If the crisis consisted only of the attack on the Capitol, the crisis was over in a single day. But if the crisis was an ongoing attempt to subvert the electoral system (Type One), or there is a real danger of repeated attempts to use violence to prevent the transition of power (Type Three), the constitutional crisis is probably not over.

Because it is so difficult to predict what will happen in the next few years, the language of crisis, which suggests immediate danger or proximity to harm, may not be helpful in understanding our current situation. Instead, I have argued that we are in a prolonged state of constitutional rot, in which democratic institutions—and the trust and forbearance necessary to keep those institutions functioning properly—are wasting away.

Rot and crisis, however, are related concepts. Constitutional rot slowly destroys the culture of democracy that is necessary for a democratic constitution to function, and thus increases the chances of constitutional failure. If constitutional rot continues unchecked, at some point it produces episodes of constitutional crisis, as it did on January 6th.  

So in addition to focusing on constitutional crisis, we should also focus on constitutional rot. The real problem is that the rot continues, and has gotten even deeper. That is reason to think that the crisis of January 6th will repeat itself, or that there will be something even worse.

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