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| Image Source: Five Thirty Eight blog |
So what exactly is a constitutional crisis? We should be clear about what does — and, more importantly, does not — merit this description. It’s possible to have a major political crisis even if the Constitution is crystal clear on the remedy, or to have a constitutional crisis that doesn’t ruffle many feathers.
Political and legal observers generally divide constitutional crises into four categories:
1. The Constitution doesn’t say what to do.
The U.S. Constitution is brief and vague. (Compare it to a state constitution sometime.) This vagueness has one major advantage: It makes an 18th-century document flexible enough to effectively serve a 21st-century society. But sometimes the Constitution leaves us without sorely needed instructions, such as when William Henry Harrison became the first president to die in office in 1841. At the time, it wasn't clear whether the vice president should fully assume the office or just safeguard the role until a new president could somehow be chosen. (It wasn't until 1967 that the 25th amendment officially settled the question.) When Vice President John Tyler took over, no one was sure if he was the real president or merely the acting president, nor was anyone certain what should happen next. Tyler asserted that he was, in fact, the new president, and since then, vice presidents who have had to step into service as chief executive have been treated as fully legitimate, but early confusion took its toll on the perceived legitimacy of Tyler’s presidency.
2. The Constitution’s meaning is in question.
Sometimes the Constitution’s attempt to address an issue is phrased in a way that could allow multiple interpretations, leaving experts disagreeing about what it means and making it difficult or impossible to address a pressing problem. In this way, both the Great Depression and the Civil War created constitutional crises. The problem sparked by the Civil War is obvious: The fight rested on a bunch of unsettled constitutional questions, the biggest of which was about slavery and the federal government’s ability to control it, a subject on which the Constitution was silent. And while the Constitution provided information on how a state could join the union, it didn't say whether one could leave it or how it would go about doing so. It obviously took a war to resolve this crisis.
3. The Constitution tells us what to do, but it’s not politically feasible.
This category of constitutional crisis can crop up when presidential elections produce contested and confusing results. In the 2000 presidential election, when George W. Bush and Al Gore were separated by just a few hundred votes in Florida, the tipping-point state whose electoral votes would determine the winner, the state’s election results remained contested for weeks due to a number of irregularities and a secretary of state who seemed determined to cut a recount short. In theory, the Constitution allowed for various solutions to this problem: Congress could have decided which of Florida’s electors to recognize, or Congress could have determined that neither candidate had achieved a majority in the Electoral College and let the House of Representatives decide on a president (per the process spelled out in the 12th Amendment). Such outcomes, while certainly constitutional, would have been politically infeasible, creating a significant legitimacy crisis for the new president.
4. Institutions themselves fail.
The Constitution’s system of checks and balances sets the various branches against each other for the laudable purpose of constraining tyranny. However, due to partisan polarization, individual corruption, or any number of other reasons, sometimes the political institutions in these arrangements fail, sending the governmental system into a crisis. This was the type of constitutional crisis commentators were seemingly referring to in describing reports that Customs and Border Protection agents (members of the executive branch) weren't following orders from the judicial branch.
Five Thirty Eight blog: The 4 Main Types of Constitutional Crises, Julia Azari and Seth Masket
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Today the government will likely not shut down, but a manufactured crisis by the orange neurosis in chief will be declared for a mythological wall that Mexico is decidedly NOT going to pay for. The great Orange Satan will declare a state of emergency because his jester cabinet of Ann "Adams Apple" Coulter, Sean "The Chin in Suit" Hannity, Laura "The Nazi" Ingram and Rush "OxyContin" Limbaugh would not be pleased unless he trapped the genie in Aladdin and wished the wall into existence, because niggling things like physics, civil engineering and eminent domain impedes its instantaneous, vainglorious appearing.
Alas, this racist totem is not going to magically appear along two thousand miles of the Texas-Mexico border (which, if you read history, used to just be Mexico). The aforementioned eminent domain lawsuits will keep spades and plowshares still for years well after Biff Tannen leaves the republic - like he did his businesses, marriages and normal human relationships - in tatters. Narcissus will cobble together a "win" in a breathless display of mendacity we've grown somewhat accustomed to as well as exhausted by; and his slobbering, nodding hoards will salivate like Pavlov's dogs for the dinner bell. If by some stretch of a miracle of WASP-C privilege he manages to dodge jail as easily as he did the Vietnam draft, we'll likely hear his bombast until his last breath...LITERALLY mid sentence in a complete Word Salad stream-of-semi-consciousness riff is how he'll likely expire because of "stamina," or something. Poetically, I'm rooting for some sentence laced with braggadocio and "greatest" in it.
Why, he's opening the door for his eventual democratic successor to declare a national emergency on things like climate change, Green New Deals; school shootings, teen pregnancy and anti-vaccine groups endangering herd immunity. The absolute horror of "little Marco Rubio" would realized sooner than Miami Beach is submerged to meet Aquaman in Atlantis! Liberal dystopia for the alt-right and "alternative facts" types: sanity, survival and the closest thing to Star Trek for the rest of us.
"One of the things taken out of the curriculum was civics," Zappa went on to explain. "Civics was a class that used to be required before you could graduate from high school. You were taught what was in the U.S. Constitution. And after all the student rebellions in the Sixties, civics was banished from the student curriculum and was replaced by something called social studies. Here we live in a country that has a fabulous constitution and all these guarantees, a contract between the citizens and the government – nobody knows what's in it...And so, if you don't know what your rights are, how can you stand up for them? And furthermore, if you don't know what's in the document, how can you care if someone is shredding it?"
"Notes From the Dangerous Kitchen," a review and a quote from Frank Zappa, Critics at Large
It's more likely we have smart phones versus copies of The Constitution - vague a document it is - in our hip pockets. We collectively know about as much of the nanotechnology that goes into them as we do our own Founding Documents.
So, just how WOULD a self-absorbed latter-day remnant of the human species know their rights are being shredded before their very eyes...if they don't KNOW what they are? Or...they might just wake up after long last as in 2018 one year from now, and vote!
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