Yet Another Constitutional Crisis?

Article excerpt

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. …