Sanford Levinson On “Constitutional Crises”

Professor Sanford Levinson discusses Constitutional crises and what they are and are not in this piece for Cato Unbound. Reprinted here with their permission.


On “Constitutional Crises”svl55-original


Consider the impeachments of Richard Nixon and Bill Clinton. Did either of them amount to a constitutional crisis? The answer is no, even though they clearly constituted political crises for both of the presidents, one of them proving fatal to his continuation in office. But the Constitution provides for a method of terminating the tenure in office of a president thought to have committed “high crimes or misdemeanors,” and one can argue that the system worked in both cases, depending, of course, on whether one is inclined to adopt a somewhat latitudinarian view of President Clinton’s undoubted misconduct in office. One might debate whether the standards for impeachment are too strict: Should it really require the commission of “high” crimes? Perhaps something less than a two-thirds vote of the Senate should be sufficient for conviction? But, in context, these are relatively minor matters.

Consider, though, a quite different scenario, where the presidential incumbent has committed no crimes or misdemeanors of any kind, let alone “high” ones, but has provided significant evidence of truly bad judgment about issues relating to war or peace (and concomitant life or death), or to basic stewardship of the economy. What then? The answer is that we are presumably stuck with such individuals—and their possession of all legal powers attached to the office—until the end of their term of office; this could easily last for over two years if the moment of disillusionment, say, occurred only eighteen months after initial election. The sharpest distinction between a presidentialist separation-of-powers system like that found in the United States and parliamentary systems found in most countries of the world today is that prime ministers have no guaranteed tenure in office. They are subject to votes of no confidence by the parliament; indeed, as in Great Britain, a sitting prime minister can be forced out of office by the equivalent of a no confidence vote within the prime minister’s party caucus itself. Thus Margaret Thatcher, surely one of the most important peacetime prime ministers in British history, was unceremoniously forced out of office in 1990 when she lost the confidence of her fellow Conservatives. She was seen as a likely electoral liability in the next election, whatever her earlier successes, and she was replaced by John Major (who in fact won the next election).

That, obviously, cannot happen in the United States. It did not matter, for example, that Harry Truman in 1951 and George W. Bush in 2006 enjoyed the support of only roughly one-quarter of the American people. Both were guaranteed tenure until 1953 and 2009, respectively, while the United States was bogged down in decidedly unpopular wars over which they presided as Commanders in Chief. Should we describe that as a constitutional crisis? I would be inclined to say yes, depending, of course, on the magnitude of discontent at the prospect of these (or any other particular president) staying in office after what one might stipulate to be justified disillusionment sets in.

That is, a constitutional crisis requires an important gap between the demands of a particular situation or time and the impermeable structures of the political system. When faced with such a crisis, there are only two choices, neither of them genuinely attractive. One of them is to do something to rectify the situation, even if that something, almost by definition, requires violating what appear to be the rules laid down by the specifics of the constitutional order. The key decisionmaker, often the President, admits that the legal system is in fact inadequate and that some form of extra-legal conduct is required. In the typology that I have developed, this as a Type 1 crisis, engendering disobedience to law. A second response is simply to accept the situation, hunker down, and hope for the best, saying all the while that nothing really can be done while remaining within the constraints of the legal order. I describe this as a Type 2 crisis, where fidelity to law is accepted even though it also seems likely to lead to disaster. Type 1 crises may forestall disaster, but only by discrediting the most prevalent model of the Rule of Law. Type 2 crises fetishize the rule of law itself: Let the law be followed thought the heavens fall.

The original constitutional crisis within post-Revolutionary War America arose from the perceived inadequacies of America’s first, and almost wholly forgotten, constitution, the Articles of Confederation. After all, Publius begins Federalist No. 1 with a reference to the “inefficiency” of the existing governmental structure; by Federalist No. 15, he will refer to the “imbecility of our government.” Adhering to the rules set down in the 1781 Articles would, he argued, doom the young republic, which would probably dissolve into two or three separate countries along the Atlantic coast. These would find themselves emulating the worst of Europe, engaged in constant warfare. Something needed to be done, and fortunately, the delegates to the Philadelphia Convention provided a solution, though it involved transforming a Type 2 crisis into Type 1, with disregard for legal forms.

After all, Article XIII of the Articles of Confederation provided that any amendment of the terms of “perpetual union” established by them would have to gain the unanimous concurrence of the state legislatures of all thirteen members. So long as one took the Articles seriously, that was a fatal stumbling block. Indeed, Rhode Island had refused to send delegates to Philadelphia because of the wholly justified perception that it would become what we today would describe as a “runaway” convention that would not recognize the limits placed upon it. What turned out to be unjustified was Rhode Island’s belief that it could always count on its veto right as guaranteed by Article XIII. Instead, perhaps the most important single article of the Constitution was Article VII, which provided that the new Constitution would come into being when ratified by the conventions (i.e., not the legislatures) of only nine (i.e., not all thirteen) states. Thus it was of no juridical consequence that neither Rhode Island nor North Carolina had ratified the Constitution when George Washington took his oath of office on April 30, 1789 as the first President of the United States. As it happened, both states did ratify the Constitution, Rhode Island by the less than inspiring vote of 34-32 in 1790. It may have feared that any attempt to stay out of the Union would be met with military force from Massachusetts or Connecticut, neither of which was about to allow an independent de-facto smuggler’s paradise at Newport harbor.

How did Publius defend this? And what about the decision by the Convention to exceed its power only to “revise” the Articles? One might commend him for a certain forthrightness unlikely to be found in most presidents today. Publius offered his response in Federalist No. 40. The long and the short of it was that the United States was faced with “exigencies,” what today we would call “emergencies.” Indeed, he emphasized the extent to which the delegates in Philadelphia “were deeply and unanimously impressed with the crisis” facing the country. Such a situation demanded doing what was deemed necessary and not feeling confined by the rules set down by the Articles (or Congress), including, of course, Article XIII. Publius made clear his utter contempt for the notion that Rhode Island, with one-sixtieth of the national population, could play the role of spoiler and prevent the necessary transformation. “In such circumstances,” Publius argued, “forms ought to give way to substance.” One ought to condemn “a rigid adherence” to “forms,” what some might simply define as legal fidelity. The proper precedent was set by the great leaders of the American Revolution themselves, claimed Publius, inasmuch as they displayed “no little ill-timed scruples, no zeal for adhering to ordinary forms.” We honor them not for their fidelity to legal norms, but instead for their willingness to do what they believed best for their country.

In case we have not already gotten the picture, the next essay of The Federalist, No. 41, gives perhaps the most chilling analysis of how best to respond to such potential disconnects between the formalities of the legal order and the exigencies of a situation. Publius, who throughout the 85 essays that constitute The Federalist indicates his mistrust of mere “parchment barriers,” declares that “It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” Political leaders will inevitably, and properly, he seems to suggest, prove ever-willing to transcend apparent constitutional limits when faced with what appear to be threats to national “self-preservation.” Such “usurpations of power” are not to be condemned, but, instead, are to be regarded as “necessary.” Just as the delegates to Philadelphia displayed an acute recognition of when it was the case that “rules were made to be broken” rather than complied with, so would future leaders. Type 2 crises will always be resolved either by transformation into Type 1 crises, where illegal conduct is in effect admitted, or, more commonly, where leaders responding to “exigencies” before them offer highly controversial readings of the Constitution or of statutes to justify their actions. Perhaps we should describe the kinds of acrimony produced by such readings as a Type 3 crisis, inasmuch as it demonstrates that even highly skilled lawyers or judges cannot in fact produce anything resembling a “consensus” about the proper use of governmental power in such situations. Justice Scalia was surely right when he commented in an interview that he and his colleagues are not “in agreement on the basic question of what we think we’re doing when we interpret the Constitution,” and that sense of being intellectually adrift is surely mirrored in the general American community.

Modern presidents, after all, have extensive legal staffs whose job, it appears, is to offer legal apologias for presidential envelope-pushing. Democrats can easily summon up John Yoo and his justification of the President’s authority to order torture (or to redefine waterboarding as “not torture”); at least some Republicans might prefer to cite Harold Koh’s remarkable argument that Barack Obama’s unilateral decision to bomb Libya raised no War Powers Act problems because the bombing did not constitute “hostilities” as defined by the Act (which presumably limits “hostilities” only to threats to American lives and not to the lives of people being bombed by American forces). We may debate whether we should be reassured by these and many other efforts to deny presidential overreaching. Of course, a major precedent for such denial is provided by Abraham Lincoln, who notably claimed the unilateral right to suspend habeas corpus even though the placement of the provision authorizing such suspension in Article I suggests to most lawyers (and to Chief Justice Taney) that prior congressional approval is necessary in order to suspend the “great writ” designed to protect against governmental tyranny.

So perhaps we can take a certain cold comfort in the proposition that many Type 2 crises will be resolved by bold action that will in time be accepted as properly “within” the domain of presidential power. But if one defines a constitutional crisis by reference to the lacunae between perceived emergencies and the ability of the political system effectively to respond to them, one could also refer to the propensities for gridlock built into the American constitutional order as guaranteeing repeated Type 2 constitutional crises, where vigorous action is unavailing. Even enthusiasts for presidential power will admit, as did President Obama himself, that presidents are not “kings” or “emperors” and, therefore, need congressional authorization in order to carry out what they view as vitally necessary programs. A President Cruz could not, by virtue of his office, carry out a campaign promise to “repeal Obamacare” unless Congress agreed to do so, and that might be difficult, if not impossible, to obtain, especially if Democrats regain control of the Senate. Even more obviously, a President Hilary Clinton would take office knowing that achievement of her campaign platform would be impossible in the face of presumed continued Republican control of the House of Representatives, whatever happens in the Senate in next year’s elections. One might predict that both Cruz and Clinton would try to take full advantage of whatever presidential prerogatives were available, but both would realize that those are indeed not unlimited.

Whatever the results of the election, one might well predict that most Americans would be extraordinarily frustrated by the continued gridlock within Congress and the failure adequately to confront whatever one thought were the major challenges at hand. Even the briefest analysis of contemporary polling data reveals that the overwhelming percentage of Americans are discontented with the workings of the national government, and Congress in particular. A Veterans Day Gallup Poll indicated that 86% of the public disapproved of Congress, while 11% approved. Unlike presidential approval rankings, which may be rough proxies for political party identification, the congressional ratings—or the answers given to questions about confidence in the future of the country, where a November 12 New York Times/CBS poll indicated that 62% of those polled believed we were moving in the wrong direction—appear to cut more deeply. No doubt most supporters of the Cato Institute might have different reasons for their discontents from mine, but I suspect we are united by a belief that the national system is simply non-responsive to what we believe to be the most important challenges facing it, whether it requires the passage of brand new legislation dealing with, say, climate change or the repeal of existing legislation like Obamacare. Neither is likely happen, and much besides will remain untreated by Congress, which will meet for fewer and fewer productive days and pass less and less truly consequential legislation.

Perhaps the most common rhetorical trope when referring to the American political system, found in columns by pundits across the political spectrum, is that it has become “dysfunctional,” and, in the memorable words of Norman Ornstein and Thomas Mann, that things are “even worse than it looks.” Still, what one rarely sees is the suggestion that we are suffering through a genuine constitutional crisis because of the “imbecilities” of certain aspects of the constitutional order that was created in 1787 and left substantially unamended since then. Instead, what one reads are heartfelt attacks on those with whom one disagrees and the suggestion that if only we could elect one’s own champions, then everything would be all right. If that were in fact the case, the only crisis would indeed be political, and we could celebrate the Constitution as providing the mechanism, through regular elections, of voting the rascals out, albeit belatedly, and placing the right candidates into office. It is much scarier, in every way, to believe that the Constitution—and our being trapped into its byzantine “forms”—is a bug, and not a feature, of our political system. That is what constitutes our most fundamental constitutional crisis.