This
post was prepared for a roundtable on Constitutional Crises, convened
as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law.
Keith
E. Whittington
Generally
speaking, constitutional crises are best understood to refer to realistic
threats of a breakdown in the constitutional order. The term was once largely
unknown in American political rhetoric, and when it was deployed it was mostly
to account for political events abroad. We could readily see that President
Slobodan Milosevic’s refusal to concede defeat in the 2000 Yugoslavian election was
a constitutional crisis. (Milosevic eventually stepped down a few weeks later
after the army and constitutional court recognized the opposition leader as the
electoral victor, a general strike paralyzed the country, and a large mob
rampaged through the parliament building.) Similarly, President Alberto
Fujimori’s successful autogolpe in 1992 in Peru presented a clear
constitutional crisis. (Facing mounting political opposition, Fujimori
dissolved Congress, reorganized the judiciary, suspended the constitution, and
arrested opposition leaders.) Cries of constitutional crisis have become
commonplace in the United States over the course of recent decades. The result
has mostly been a debasement of the term as its use multiplied and became a
partisan weapon. Despite its overuse, however, there is a real phenomenon that
the idea of a constitutional crisis can helpfully characterize. A
constitutional system can sometimes cease to function, and we need the language
to talk about such a possibility.
I
have long found it useful for understanding American
constitutional history to conceptualize constitutional crises as coming in two varieties. A crisis
of constitutional operation arises when important political disputes cannot be
resolved within the existing constitutional framework. Whether through a change
in circumstances or through a flaw in constitutional design, political actors
may find themselves unable to resolve political disagreements within the
confines of established constitutional procedures. A crisis of constitutional
fidelity arises when important political actors are no longer willing to abide
by existing constitutional arrangements or systematically contradict
constitutional proscriptions. Part or all of the constitution may simply be ignored
as political actors seek to resolve their political disagreements and advance
their goals in ways that are at odds with the putative constitutional
arrangement. And, of course, a crisis of operation may well lead to a crisis of
fidelity.
I
have reluctantly come to the conclusion that a third category might be needed
to encompass the range of constitutional crises that have emerged. A crisis of
constitutional bad faith may occur when political actors refrain from
repudiating the inherited constitutional system but nonetheless subvert it by
only giving lip service to constitutional requirements.
I
have come around to this possibility only reluctantly, not because bad faith
does not exist but because it is too hard to recognize. My initial concern with
this topic was to try to wrest the concept of a constitutional crisis from
common political parlance and recover an analytical tool that could help us
make sense of constitutional systems and how they operate. A central goal was
to separate out the small kernel of what can be usefully understood to be
genuine constitutional crises from the large set of ordinary constitutional
politics that partisans might have interest in characterizing as crises. The
tool would not be very useful if we cannot recognize constitutional crises,
even in hindsight, or we cannot reach any agreement on when they occur. As a
piece of political rhetoric it had already degenerated into a particularly
emphatic way of attacking political enemies. Like judicial activism, constitutional
crisis might become inherently subjective and exist only in the eye of the
beholder, a way of describing political actions that one’s opponents engage in.
Of
course, accusations of bad faith generally have also become quite common. At
least in the political context this is perhaps unsurprising given increasing
polarization and political separation. As political and social groups become
more homogeneous and the distance between the political camps grows, it becomes
all the harder to understand, let alone empathize with, those with whom we
disagree. Political actions by the other side seem less explicable as simple
good faith disagreements about political ends and means. It becomes easier to
imagine that our political foes act in bad faith than that they just have
reasonable disagreements with us.
The
challenge of distinguishing bad faith behavior from good faith disagreement is
at least as serious in the constitutional context. When our shared
understandings are extensive and our disagreements are small, it is
straightforward to imagine that we are all playing the same game under the same
rules. Our disagreements might be important and meaningful, but they are
understandable and at least theoretically possible to overcome. As our common
bonds fray, however, those disagreements begin to seem more sinister. One
starts to suspect that one’s antagonist is not even trying to play the same
game anymore. It is hard to credit their constitutional arguments as sincere
and worth taking seriously. The disagreements are so deep that it is hard to
believe that the other side is even being sincere in saying that they too are
just trying to understand, live within, and elaborate on our common
constitutional inheritance. From the perspective of conservative jurists, the
New Dealers and their scholarly allies were not just mistaken but no longer
even trying. Their success meant the Constitution was “gone”; it has been
“swept away.” From
the perspective of conservative jurists, the Warren Court and its scholarly
apologists were not just wrong but were lawless, unbound by and unfaithful to
constitutional strictures. Of course the reformers did not take such complaints
seriously. After all they saw themselves as acting in good faith (I think).
They were perhaps creative, they would say, but they were still playing the
same old game. They were still using the familiar constitutional grammar even
if they were using it to reach new conclusions. Accusations of bad faith were
just the whining of the political losers and could be dismissed as such. Trying
to create a conceptual category of bad faith constitutionalism risks
degenerating into endless partisan bickering that neither clarifies nor helps.
Despite
such concerns, the possibility of a crisis of bad faith constitutionalism seems
all too real and so perhaps cannot be ignored if we want to adequately
understand the workings of constitutional politics. Functionally it does
similar work to constitutional infidelity. It effectively excises components of
the constitutional system and renders them inoperative, and does so without any
legitimate or recognizable process of constitutional amendment or change.
Crises of constitutional infidelity have been exceedingly rare in American
history, or least so I have argued. Part of what makes infidelity rare is that
the United States has traditionally had a robust culture of constitutional
veneration. No matter how dysfunctional the constitutional system might seem,
the political costs of simply stepping outside of that system have been high.
Elites and citizens alike have demanded that any viable political movement and
would-be political leader declare their loyalty to the constitutional faith. In
a political culture of constitutional veneration, the constitution cannot
simply be suspended. There is no substantial constituency willing to back the
play of a leader tempted to announce an explicit departure from the inherited
constitutional order, and so successful political leaders refrain from making
such announcements.
But
what one cannot openly announce one might still be able deceitfully to do. Bad
faith constitutionalism might be a viable alternative to faithless
constitutionalism. One can comply with the constitutional forms while emptying
them of their substance. One can claim adherence to the constitutional letter
while subverting the constitutional spirit. The constitutional order has still
broken down. Politics is no longer confined within and structured by the
ostensible constitution. Political actors can still pledge allegiance to the
old constitutional order without having to concede to the inconveniences of
constitutionalism. Political will triumphs over constitutional judgment without
acknowledging the achievement.
Perhaps
bad faith constitutionalism is just how constitutional infidelity works in a
culture of constitutional veneration. All the pressures that lead to
constitutional infidelity still exist, but the infidelity dare not speak its
name. But even if bad faith constitutionalism is theoretically a meaningful
phenomenon, we might still not have much luck in identifying it. We might be
able to see the speck in our brother’s eye but neglect the beam in our own. We
might be able to recognize such a crisis if we observe it happening in other
countries. We might even be able to recognize it in our own history, at least
if those controversies are sufficiently detached from our own. Unfortunately,
when the alleged bad faith crisis is entangled with our own contemporary
controversies, we are unlikely to be able to achieve the kind of objectivity
necessary to separate out the bad faith actions from the good faith, if
intense, disagreements.
Despite
such concerns, however, it might be necessary to recognize that the wolf of
constitutional crisis sometimes comes dressed as a sheep. Descriptively and
analytically, we would want to know what political actions initiate a departure
from an established constitutional order. Normatively, we would want to know
what political actions threaten a constitutional order that we want to sustain—or
are necessary to leave behind a constitutional order that can no longer be
justified.
Keith
E. Whittington is the William Nelson Cromwell Professor of Politics at
Princeton University and a Visiting Fellow at the Hoover Institution. You can
contact him at kewhitt@princeton.edu.