Tuesday, February 7, 2017

Balkinization: How to tell if you are in a constitutional crisis

Let's chill on the overheated rhetoric.  When Trump refuses to obey a court order - that will be a crisis.  Until then it is just hardball. - gwc
Balkinization: How to tell if you are in a constitutional crisis
by Jack Balkin

***Constitutional crises come in three types. In the first kind, politicians (or military officials) announce that they won't obey the Constitution. In our system of government, government officials are supposed to obey judicial orders specifically directed to them. (That is true even if they believe that the judge has interpreted the law incorrectly.) Therefore defying a direct judicial order would also be tantamount to precipitating a constitutional crisis. When government officials (or the military) publicly announce that they will no longer play by the rules of the Constitution, the Constitution has failed. Constitutional crises of this type are very rare in American history.

Second, the Constitution might fail because it keeps political actors from preventing a looming disaster. These situations are even rarer because political actors (and the courts) usually conclude that the Constitution allows them to escape disaster.

Third, a constitution might fail because lots of people refuse to obey it-- there are riots in the streets, states secede from the Union, the army refuses to obey civilian control, and so on. 

When people are upset at what government officials have done, they often call these actions constitutional crises. However, most of these situations aren't really constitutional crises, because there is no real danger that the Constitution is about to break down.  The vast majority of uses of the term "constitutional crisis" are hyperbole.

Sometimes when people call something a constitutional crisis, they really mean that there is a heated dispute about the best interpretation of the law or the Constitution, and that their political opponents are interpreting the law or the Constitution in the wrong way. That in itself, however, is not a constitutional crisis, because disputes about the best interpretation of the law and of the Constitution are a normal feature of American politics. Many, but not all of those disputes, are eventually settled in the courts. Others are settled through politics. Settlement of serious disputes through the courts or politics is not a constitutional crisis. It is how a constitution is supposed to work.

Sometimes what people call constitutional crises are really what Mark Tushnet has called "constitutional hardball." This is a situation in which political actors stretch or defy political conventions that were previously considered unspoken rules of fair play in politics but were not clearly legally required. 

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