Constitutional crisis is a term that’s been thrown around a lot lately in American politics: House Judiciary Chairman Jerrold Nadler argued in early May that the withholding of the unredacted Mueller report is setting one up, leading President Donald Trump to argue on Sunday that the existence of the investigation is itself the crisis.
Still, true examples of such crises have been relatively rare in the nation’s history — not that everyone agrees on what exactly qualifies as one. Even experts may draw the line at different points. After all, disagreements are a supposed to be part of the U.S. political system, and emergencies are an unfortunate part of any government.
But, though their lists of actual crises may vary, scholars agree that in order to qualify as a true crisis the incident must be more than a conflict. To deserve such a name, the conflict must also involve a breakdown in ordinary procedure and an unusually strong reaction to that breakdown.
“To me, a constitutional crisis is when the branches of government in their ordinary functioning cease to resolve that conflict,” explains Linda Monk, author of The Words We Live By: Your Annotated Guide to the Constitution. And Michael Les Benedict, author of Preserving the Constitution, echoes that crisis situations come when “the ordinary modes of resolving the conflict are not working.” A third definition, offered by constitutional scholars Sanford Levinson and Jack M. Balkin in a University of Pennsylvania Law Review article on the subject, is that “the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff” and “disagreements and threats take on a special urgency.”
Such a situation — the combination of three factors: conflict, breakdown and reaction — could result from a variety of causes.
Levinson and Balkin, for example, separate such crises into three types: “Type one crises arise when political leaders believe that exigencies require public violation of the Constitution. Type two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests.” (At FiveThirtyEight, Julia Azari and Seth Masket broke it down into four categories that could be roughly summed up as crises caused by lack of guidance in the Constitution, crises caused by differences of interpretation, crises caused by the limits of political feasibility, and crises caused by failure of structures. Meanwhile, for The New Yorker, Jeff Shesol merely noted that “we tend to know them when we see them.”)
To Monk, there’s perhaps another category of crisis to add to the list: if a governmental actor like the President has a “fundamental lack of understanding or disregard for the constitution,” that situation can cause a crisis, because that understanding is “such a fundamental responsibility” given the President’s sworn duty to “preserve, protect and defend” the Constitution.
Because of differences in opinion about where exactly a crisis begins, experts’ lists of real American constitutional crises are — unsurprisingly — also different.
In Monk’s list of examples, the first constitutional crisis comes practically right away: the Sedition Act of 1798, which criminalized criticism of the government. In her view, this test of the young First Amendment — which was less than a decade old — is a clear example of the party in power, the Federalists in this case, making a claim that circumstances merited disregarding the amendment’s guarantees; what made it a crisis, in her view, was the sense that the Federalist-controlled Supreme Court would have been unlikely to overturn the law, thus eliminating any recourse for the side of upholding the constitutional protection in question. In other words, the baked-in system for avoiding such overreach was failing. (This crisis underlines what Monk sees as one of the conditions that can make such a crisis more likely: when one party wields far more power than the opposition, the lack of ways to push back from the other side can be problematic.)
That crisis was resolved in the political arena two years later, when the Federalists — thanks in part to backlash over that act — were voted out of power. They were replaced by politicians who let the act expire, though that election itself is seen by some as a crisis too, as it exposed the Constitution’s failure to adequately address what should happen in the case of an electoral tie.
Balkin and Levinson’s criteria for a crisis are strict; they hold that not even the infamous “Saturday Night Massacre” of the Watergate era was a crisis, since Nixon did appoint a new special prosecutor. (Watergate was a political crisis, not a constitutional one, they argue.) One moment they find a real crisis is President James Buchanan’s dogged faithfulness to his interpretation of the Constitution in the run-up to the Civil War, when he held fast to the idea that he had no power to intervene to address the secession crisis, and in the Civil War itself, an “extraordinary form of protest” if ever there were one. That crisis was resolved eventually, too — though on the battlefield, and in such a way that would reverberate over the years and decades to come.
Generally, though experts may disagree on whether or not a given moment was a crisis, they agree that the U.S. has faced relatively few of them, especially given the potential for conflict that’s baked into the document.
“There are a limited number of times there’s really been a crisis but there were many times it could have gone differently,” Benedict says. “They all have generally been resolved before the crisis reached a point where they could not be resolved without some kind of recourse to force. The only one that you could say that wasn’t was the secession crisis.”
That fact that almost every possible crisis was resolved before it hit the breaking point gets at one of the take-aways from the short history of constitutional crisis in the U.S., and why that history is a reason to celebrate the document.
The flexibility and brevity of the Constitution leave a lot of room for disagreement and conflict, but those qualities also mean there’s room for those in power to figure out how to use the Constitution to get the nation out of any number of binds. That’s true even when the situation in question is something the Founding Fathers could never have imagined.
“[The] American Constitution,” Balkin and Levinson write, “may have worked itself out of any number of potential dead ends.”