Yet another constitutional crisis?

• Author: Whittington, Keith E.
• Position: Historical overview of crises and potential crises in US history

ABSTRACT

The recent presidential impeachment and the postelection controversy each led many to fear that the United States had either already entered or was about to enter a constitutional crisis. Such concerns seem overwrought. This Article will use those events as a foil for examining the nature of constitutional crises. The Article will distinguish two types of constitutional crises and consider several potential crises in American history, clarifying how crises occur and how they can be averted. Constitutional crises in the United States are rare in large part because of the robustness of the country's informal constitutional practices, reasonably good constitutional design, and relatively limited political disagreement.

This is no social crisis. Just another tricky day for you.

Pete Townshend (1)

Like local television newsmen who are quick to declare the latest rain shower to be a weather emergency, many have recently found that the words "constitutional crisis" come readily to their lips. During the height of the impeachment efforts directed against President Bill Clinton, there were over a thousand references in the media to a constitutional crisis in the United States. (2) Perhaps building on that momentum, there were nearly twice as many references to an American constitutional crisis during the legal disputes following the 2000 presidential election. (3) Similarly, commentators readily perceived in both events the collapse of political order and a system in chaos. (4) Even for many of those who did not believe that a constitutional crisis was already upon us in the midst of these events, they saw one looming on the horizon.

Perhaps, now that a little time has passed, the excess of such reactions to these recent events is already evident. Even at the time, the general public seemed to have demonstrated substantially greater patience and calm--and perhaps simple disinterest--than the political class directly engaged in the struggle. (5) The republic appears to have survived these events relatively unscathed. Still-fresh events abroad also put our own cries of constitutional crisis in sharp relief. Our "crises" appear rather mild compared to, for example, President Slobodan Milosevic's refusal to concede defeat in the Yugoslavian elections, President Vladimir Putin's crackdown on independent regional governors and media critics in Russia, President Alberto Fujimori's arrest of congressional leaders in Peru, or President Boris Yeltsin's armed conflict with the Russian Parliament. Perhaps such examples would suggest the need for a bit of morning-after sheepishness about our reaction to our own political upheavals. More fundamentally and more usefully, however, they may also suggest the need to consider constitutionalism and the workings of our constitutional system a bit more closely.

In particular, it would be useful to identify the features of a constitutional crisis. Doing so would help advance our understanding of constitutionalism generally and of American constitutionalism particularly. Although the possibility of crisis shows the constitutional system in extremis, it may also illuminate the more routine ways in which the constitutional system is preserved. The consideration of constitutional crises also suggests that such crises have been extraordinarily rare in the United States, especially at the national level. There seem to be two conflicting popular narratives regarding such matters. Most of the time, we seem to accept a narrative of constitutional stability with a single constitutional order extending seamlessly from the Founding period to the present. (6) At the same time, the popular media, at least, seems prone to revert to a narrative of constitutional crisis when politics drifts outside the routine. (7) In such moments, we seem quick to question the vitality of the American constitutional machinery and uncomfortable with relying on its less familiar mechanisms. Given the historical durability of the U.S. Constitution and the relatively minor character of recent events, such doubts seem unwarranted. An excessive fear of the fragility of the constitutional system can be as damaging as a heedless assumption that the Constitution will always save us from ourselves. Distinguishing between false and genuine constitutional crises, and recognizing the causes of the latter, will perhaps help us steer a middle course.

Though many seem to think that they know one when they see one, the notion of a constitutional crisis is ill-defined. A primary goal of this Article is to give the concept somewhat better definition. The first section of the Article distinguishes two types of constitutional crises, briefly illustrates them, and places the Clinton impeachment and the 2000 presidential election controversy in context. The second section considers several prominent candidates for crisis status from American history. This section argues that most of these events should not be regarded as constitutional crises, but, more importantly, it helps clarify how crises can occur and how they can be averted. The final section considers the significance of these events to our understanding of constitutional crises and the relative success of the American constitutional experiment.

1. TWO TYPES OF CONSTITUTIONAL CRISES

   Overviewing the concept of a crisis, one political scholar concluded, "`[c]risis' is a lay term in search of a scholarly meaning." (8) The varied use of the term denudes it of any real analytical value. There are relatively few efforts to specify the concept of a crisis. They are more often taken as "first-order realities," "givens of history" that "do not call for particular identification or definition. `Everybody' knows when one happens." (9) Perhaps especially in the context of international affairs, there is an apparently "natural naming" of such events as the Cuban Missile Crisis or the Iran Hostage Crisis that belies the need for theoretical inquiry. (10) Crisis often implies or is used synonymously with "panic, catastrophe, disaster, [or] violence." (11)

   Crises can be defined in different ways. Consistent with the etymological origins of the term and contemporary medical usage, a crisis can be identified with a turning point or decisive moment. (12) In the social arena, however, crises are not necessarily decisive and have a more negative connotation. Crises can also be understood as situations requiring decision or action and involving instability or threats to important values. (13) As a consequence, "crisis confronts decision makers with potential consequences of profound importance," but also with substantial uncertainty and time pressures. (14) Although the outcome of a crisis may be favorable or result in little alteration of the status quo ante, such crises have a negative connotation because they put important values under stress. Crises represent a disruption of the existing equilibrium, a breakdown of order. (15) For example, a period of crisis may be a moment in which "old economic, political, and ideological arrangements are in decline, and alternative institutional arrangements exist only in inchoate form," (16) or when a period of international peace is disrupted by a moment of heightened conflict, (17) or when economic stability suddenly gives way to deep depression (18) or uncontrolled inflation. (19)

   How might these concepts be applied to the notion of a constitutional crisis? The possibility of natural naming would seem to be unrealized in a constitutional context, since there appears to be no agreed-upon or enduring list of such events and there is an absence of historical events bearing the explicit name of crisis in American constitutional history, in contrast to American economic or political history. The modifier constitutional introduces its own ambiguities. An international crisis, for example, reflects a crisis within the international arena and a disruption of the international order, which suggests that crises become particularly constitutional when they threaten the constitutional roots of a political system. A political crisis becomes a constitutional crisis when not just a particular administration is put at risk, but the constitutional system itself is tested. (20) The concept of a crisis government is suggestive, and represents the interruption and temporary replacement of constitutional government by executive or military rule when constitutional governance becomes impossible. (21) To the extent that constitutional crisis is used to mean more than a particularly emphatic sense of political trouble, the term seems to be used to signal the threat of a breakdown in the constitutional order. (22)

   Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions. (23) This formulation is deceptively simple and, as we shall see, a number of more specific circumstances can fit within this broader framework. Although the particular functions of a constitution can be described in a variety of ways, constitutions are importantly concerned with establishing a government and with enshrining foundational political values. (24) For liberal constitutions, enshrining foundational political values will largely entail identifying the proper limits of government power, and the institutions of government will be designed with an eye toward making those limits politically effective. (25) A constitution is thrown into crisis when its prescriptive structure cannot be realized in practice or is significantly inadequate to achieving its goals. (26) The imagined constitutional order may no longer be consistent with and unable to contain the politics on the ground. (27)

   Constitutional crises are, in the first instance, crises for and of the constitution itself. Given the importance of constitutions, a constitutional crisis is likely to be both a symptom and a cause of political crisis, but it is worth...