Is the U.S. Entering a Constitutional Crisis?

How much can you push a country’s Constitution before democracy enters a state of crisis?

In a Fri., November 10 Ethnic Media Services briefing, experts in political science, political history and constitutional law discussed the signs of constitutional crisis, and the challenges threatening U.S. democracy a year away from presidential elections.

What is a constitutional crisis?

Aziz Z. Huq, Scholar of United States and Comparative Constitutional Law, University of Chicago Law School, discusses the current Supreme Court’s emphasis on free speech and religious liberty and how it has the potential to harm vulnerable and marginalized communities.

Seth Masket, political science professor and Director of the Center for American Politics at the University of Denver, identified four potential kinds of constitutional crises. The first is a circumstance the Constitution doesn’t at all detail how to address — for example, President Harrison’s death in 1841, before the Constitution included Vice Presidential succession.

A second type of crisis occurs when the Constitution is unclear about the parameters of government — for example, said Masket, “in the 1850s it was unclear whether the federal government could regulate or eliminate slavery in states, and we had a civil war to answer that question.” A third type involves the outright failure of institutions, e.g. a government shutdown.

The fourth, he continued, is the most descriptive of our current situation: “The Constitution does say what to do, but it’s not politically feasible, we don’t want to do it” — for example, although the Constitution provides for impeachment, “so far we’ve never actually removed a president from office through impeachment.”

Gloria J. Browne-Marshall — Emmy Award-winning author, playwright and Constitutional law professor at CUNY, John Jay College — offered another example of constitutional crisis which, she said, we may face in 2024. When the Supreme Court makes a decision, but one or both of the other branches of government refuse to follow it.

“We could have the executive branch refuse to follow it, or give an executive order that contradicts it which the people want to follow anyway,” Browne-Marshall explained.

Discussing the definition of a constitutional crisis in legal circles, Aziz Z. Huq — scholar of United States and Comparative Constitutional Law at the University of Chicago Law School — said given that the Constitution, like any written law, has many gaps and ambiguities, “I don’t think that conflict over implementation necessarily counts as a crisis, because such conflicts have been pervasive features of our democracy since the 1780s.”

Rather than a long-standing condition, Huq continued, many lawyers’ use of the term “crisis” depends on “what the purposes of the Constitution are. If it’s to install a democracy, it’s a crisis when democratic self-government goes off the rails.” Rather than a government shutdown, for example, which is short-term and not uncommon, a crisis is when “the entire system of governance set up by the Constitution is at the point of breaking, which is what happened in the 1850s, before the Civil War.”

Will we face a constitutional crisis in 2024?

Seth Masket, Professor, Department of Political Science, Director of the Center for American Politics at the University of Denver, discusses the ways in which political parties can take advantage of the constitution.

As one of next year’s major presidential candidates, Donald Trump, faces several criminal and civil indictments, a question arises as to whether the possibility of his election indicates a weakness of the Constitution on which our democracy depends.

Masket argued that the problem “isn’t necessarily with the Constitution, it’s with political parties which have stepped in to fill the void left by the Constitution,” given that beyond requirements of age and birth in the U.S. the document’s presidential restrictions are relatively few, and don’t include the prohibition of felons or currently imprisoned people from running for office.

In fact the only criminal offense which the Constitution details is insurrection per the 14th Amendment, added Browne-Marshall. What’s unique about 2024, given Donald Trump’s involvement with the U.S. Capitol storming on January 6th, 2021, is that this constitutional “provision is being triggered in a person who has a real likelihood of winning … I think this is what may cause a political crisis.”

What’s distinctive about this moment, added Huq, “is not the fact that there’s a likely candidate under indictment, but that two of his four indictments concern efforts to subvert the democratic process, and to prevent the lawful proper counting of people’s votes. What’s unique is the credible demonstration of a willingness to engage in the anti-democratic use of political power, to use political authority to remove political enemies … and that all this may not necessarily move many voters against him. This is observed in other democracies, especially fragile ones, but doesn’t have an exact parallel in American history.”

Our democracy after 2024

Gloria J. Browne-Marshall, Professor of Constitutional Law, John Jay College (CUNY), author, playwright, writer/host of Emmy Award-winning animated series “Your Democracy”, says the threats to democracy now being discussed in mainstream academic and news circles have always been the reality for people of color in the U.S.

Discussing what may come to pass for U.S. democracy if its next elected president is one who disregards constitutional law, Huq said “We shouldn’t start from the premise that we have a perfect democracy. But we don’t have to, to recognize that the system that we do have can get much, much worse.”

“It’s important to distinguish between the Constitution and democracy itself,” added Masket. “The Constitution has aspects of it that are very democratic — the House of Representatives, elections, and so forth — but also some that are less democratic or even counter-democratic, including to some extent the Senate, the Electoral College, and the Supreme Court. Much of what Trump is threatening may be more of a threat to democracy than to the Constitution itself.”

Browne-Marshall emphasized that those conservatives who support Trump are often the staunchest supporters of the Constitution: “I don’t see progressives, liberals, Democrats, interpreting the Constitution in a way that makes it a real document that can be used or weaponized, while conservatives have weaponized it and made it their own.

“The constitution of this country, which is supposed to bind all of us in our differences, is coming apart at the stitches,” she continued. “We need to understand how some are interpreting the Constitution to allow the behavior of a president who disregards our democracy, whether any interpretation really can.”

The strains of democracy can’t be fixed by our Constitution, speakers suggested. Beyond whether the country is entering a constitutional crisis, they raised the question: Is the U.S. entering a crisis of democracy?

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