Constitutional crises.

• Author: Levinson, Sanford

[W]e must never forget that it is a constitution we are expounding.... [It is] a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

McCulloch v. Maryland (1)

Among all the other Roman institutions, [the dictatorship] truly deserves to be considered and numbered among those which were the source of the greatness of such an empire, because without a similar system cities survive extraordinary circumstances only with difficulty. The usual institutions in republics are slow to move ... and, since time is wasted in coming to an agreement, the remedies for republics are very dangerous when they must find one for a problem that cannot wait. Republics must therefore have among their laws a procedure ... [that] reserve[s] to a small number of citizens the authority to deliberate on matters of urgent need without consulting anyone else, if they are in complete agreement. When a republic lacks such a procedure, it must necessarily come to ruin by obeying its laws or break them in order to avoid its own ruin. But in a republic, it is not good for anything to happen which requires governing by extraordinary measures.

Niccolo Machiavelli (2)

INTRODUCTION: "CONSTITUTIONAL CRISIS" EVERYWHERE? I. CRISES VERSUS EMERGENCIES II. TYPE ONE CRISES: DECLARING A STATE OF EXCEPTION III. TYPE TWO CRISES: EXCESSIVE FIDELITY TO A FAILING CONSTITUTION IV. TYPE THREE CRISES: STRUGGLES FOR POWER BEYOND THE BOUNDARIES OF ORDINARY POLITICS CONCLUSION: GODEL'S PROOF? INTRODUCTION: "CONSTITUTIONAL CRISIS" EVERYWHERE? (3)

The Constitution of the United States was written against the background of perceived crisis. (4) It is therefore no surprise that the language of "crisis" has never been absent from discussions of American politics or American constitutionalism. It would be remarkable indeed if a country that has unceremoniously ignored an existing constitution--the Articles of Confederation--in order to propose and ratify a radically different one, engaged in civil war, suffered a series of economic depressions, fought two world wars (and several other major conflicts), and expanded from the eastern seaboard to the mid-Pacific and the Caribbean Sea (5) could fail to test the limits of constitutional government and generate the kind of struggles over power that produce claims of "crisis." Harry Jaffa's justly praised book on the pre-Civil War Constitution--which tried unsuccessfully to honor the demands of freedom and slavery alike--is aptly tided Crisis of the House Divided. (6) A classic article by Arthur Bestor is tided simply The American Civil War as a Constitutional Crisis. (7) And that crisis, of course, was resolved by a great war (and subsequent Reconstruction) that generated more than its own share of constitutional struggles, (8) including the disputed presidential election of 1876. (9)

The American Constitution, then, was born in crisis and tested in crisis. The difficulty, however, is that the language of crisis is ubiquitous, applied to controversies great and small. There is hardly a disagreement in American law, however slight, that someone will not label a "constitutional crisis." Recently, New York Times columnist Bob Herbert described with alarm a proposed California referendum that would allocate the state's electoral votes by share of the popular vote. The predictable effect would be to eliminate the Democrats' advantage in California and hand the Republican candidate a sum of electoral votes roughly equivalent to those of Ohio. Adoption of this proposal, Herbert solemnly warned, "could become a constitutional crisis," (10) by which he presumably meant that costly litigation and particularly heated arguments would follow. (11)

Or consider Chief Justice John Roberts's 2006 year-end message on the state of the American judiciary. It was devoted to an "issue [that] has been ignored far too long and has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary." (12) What was this momentous issue threatening the very future of the Republic? It was "the failure to raise judicial pay." (13) Roberts's language was greeted with widespread ridicule, but it remains noteworthy that someone so well known for his skills of effective advocacy would think the term useful.

And whether or not one believes that the September 11 terrorist attacks "changed everything," one thing has surely not changed: once again government officials and their supporters are repeatedly telling us that we are living in an era of crisis and facing an emergency situation that requires strong measures and drastic action. In the meantime, their critics respond that we face a constitutional crisis precisely because of the extraordinary and arguably unconstitutional measures used to meet the presumptive emergency. (14)

In fact, there is nothing new about the promiscuous use of the term "crisis" to describe constitutional conflicts of every size. An important 2002 article by Keith Whittington noted that almost three thousand articles in the press used "constitutional crisis" in reference either to the impeachment of Bill Clinton (1026 articles) or to the controversy surrounding the 2000 election (1901 articles). (15) One wonders what Whittington's count might have been had he examined references to the 1986 Iran-Contra episode (16) or, a decade earlier, the Watergate scandal. (17) A survey of The New York Times from 1933 onward discovered that the term was frequently used in the 1930s, but less frequently between 1937 and 1950. (18) Interestingly enough, The New York Times published very little about "constitutional crises" in the United States in the first half of the 1960s--the banner years of the Civil Rights Movement--though the term started appearing more around 1967. As one might predict, there was a substantial spike in 1973, coinciding with Watergate. Other spikes, as Whittington's work suggests, appear in 1998 and 2000 because of the Clinton impeachment and the disputed presidential election.

People generally use the term "constitutional crisis" to describe periods when institutions of government are clearly in conflict. But the mere existence of conflict, even profound conflict, cannot be the definition of crisis. Government institutions are always in conflict. Every year the Supreme Court hears cases, and the losers usually proclaim that the Court has grievously overstepped its boundaries. Constitutional conflicts, when they do arise, are often resolved relatively quickly. Or, if they drag on for years, like the debate about school prayer or abortion, they rarely threaten the foundations of constitutional government. (19)

Indeed, the American system of government was based on the idea that the different branches, as well as the states and federal government, would continually balance and check each other. Inevitably, this means that they will disagree and oppose each other. If we were to say that every such confrontation was a crisis, we would have to conclude that the American Constitution was designed to place the country in a state of perpetual crisis. To the contrary, our constitutional system was designed to allow for often-heated conflicts, like those about abortion or race relations, and to keep them within the boundaries of ordinary politics. Conflict in a constitutional system is not a bug--it is a feature.

Given that conflict between political actors is the norm and not the exception in American constitutional life, the idea of constitutional crisis must be far narrower. We therefore reject the notion that any situation in which institutions or actors are at loggerheads constitutes a crisis. Rather, we must reserve the term for a more special class of situations.

Moreover, one must be careful to distinguish between constitutional crises and mere political crises. Many observers believed that Richard Nixon created a constitutional crisis when he fired Watergate Special Prosecutor Archibald Cox in October 1973. But Cox was, after all, a member of the executive branch, notionally headed by the President, and Nixon's argument that he had the authority to dismiss Cox was hardly frivolous. Nixon famously refused to disclose the contents of the Watergate tapes to Cox's successor, Leon Jaworski, but he complied with the Supreme Court's decision ordering such disclo sure, (20) and, unlike Andrew Johnson or Bill Clinton, left office before the impeachment process ran its full course. From this perspective, Watergate was more a political crisis than a constitutional one. Nevertheless, it could easily have become a constitutional crisis at several points if Nixon had publicly stated (which he never did during his presidency) that he sought deliberately to go beyond his powers under the Constitution. The closest Nixon came was through his attorney's hint that he would obey only a "definitive" decision of the Supreme Court, (21) and Nixon's own assertion, many years later, that "when the President does it, that means that it is not illegal." (22)

Similarly, impeachment by itself does not constitute a constitutional crisis, even though commentators may often speak in those terms. (23) Nixon's proposed impeachment and Clinton's actual impeachment were surely political crises for the respective presidents, and one of them actually had to give up his four-year lease on the White House. But it is difficult to detect a constitutional crisis in Republicans' use of procedures specifically written into the Constitution--the Impeachment Clause of Article II (24)--to require Clinton to stand trial. Lawyers, to be sure, argued vociferously about whether Clinton's (mis)conduct constituted a kind of "high crime and misdemeanor," but such arguments, no matter how loud and long, do not a constitutional crisis make.

Perhaps the election of 2000 was different. One reason that Whittington used the dispute over the 2000...