What, exactly, constitutes a “constitutional crisis”? It is a term we are hearing more frequently, and over at Vox, they made a pretty good stab at defining it.
Dylan Matthews writes that he
decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.
As one of the experts noted, the fact that something tends to undermine respect for constitutional institutions–like calling a judge a “so-called” judge, or showing lack of respect for the courts–can be a bad idea, yet not amount to a constitutional crisis. (As I tell my students, the fact that a policy is stupid or even dangerous doesn’t automatically make it unconstitutional.)
Matthews quotes constitutional scholar Keith Whittington for the definition of a genuine crisis.
“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).
So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.
The article is interesting, and (given the chaos that is today’s White House) worth reading, but it didn’t directly address a question that I’ve begun mulling, given the “drip, drip, drip” of new revelations (most recently, the scandal surrounding Sessions): What if it turned out that Russia really did “elect” Trump? In other words, what if investigations turned up evidence that Russia’s tampering really did “rig” the election?
The Constitution has no remedy for an illegitimate election, at least not that I am aware of. Trump’s electoral college victory rested on fewer than 80,000 votes spread among three states, giving him paper-thin margins in those states–and the win. If those votes were suborned or improperly counted, then neither he nor Pence would really have been elected.
What then? Would we follow the constitutional line of succession, and install Ryan–giving the Republicans a “win” they didn’t win?
Let me emphasize that I have absolutely no evidence that this actually happened; my guess is that the Russian efforts to influence the election were just that–efforts at influencing public opinion, rather than actually falsifying results. I raise the question because it is becoming clear that there are aspects of our current political life that neither our national charter nor our governing institutions anticipate or address. I doubt the Founders could have foreseen the nature of today’s democratic distortions caused by the Electoral College, or the way in which gerrymandering has deprived millions of Americans of meaningful votes, or the current iteration of the filibuster that requires Senate super-majorities in order to pass even routine legislation.
If a central function of a Constitution is to prescribe fair and transparent processes by which citizens govern themselves, we may need to do some repair work on ours.