As the Trump presidency approaches a troubling tipping point, it’s time to find the right term for what’s happening to democracy.
Here is something that, even on its own, is astonishing: The president of the United States demanded the firing of the former FBI deputy director, a career civil servant, after tormenting him both publicly and privately—and it worked.
The American public still doesn’t know in any detail what Andrew McCabe, who was dismissed late Friday night, is supposed to have done. But citizens can see exactly what Donald Trump did to McCabe. And the president’s actions are corroding the independence that a healthy constitutional democracy needs in its law enforcement and intelligence apparatus.
McCabe’s firing is part of a pattern. It follows the summary removal of the previous FBI director and comes amid Trump’s repeated threats to fire the attorney general, the deputy attorney, and the special counsel who is investigating him and his associates. McCabe’s ouster unfolded against a chaotic political backdrop which includes Trump’s repeated calls for investigations of his political opponents, demands of loyalty from senior law enforcement officials, and declarations that the job of those officials is to protect him from investigation.
All of which has led many observers to wonder: Are we in the midst of a constitutional crisis? And if so, would we even know?
A quick search on Google Trends shows that public interest in constitutional crises has scaled up impressively in the time since Trump’s election, with spikes in interest appearing at particularly fraught moments: the first travel ban, James Comey’s firing, and several points at which Trump appeared to be on the brink of dismissing Special Counsel Robert Mueller. Now, with the firing of McCabe, the specter of constitutional crisis has reappeared.
The term “constitutional crisis” gets thrown around a lot, but it actually has no fixed meaning. It’s not a legal term of art, though lawyers and law professors—as well as political scientists and journalists—sometimes use is as though it were. Saying that something is a constitutional crisis is a little like saying that someone is going through a “nervous breakdown”—a term which does not map neatly onto any specific clinical condition, but is evocative of a certain constellation of mental health emergencies. It’s hard to define a constitutional crisis, but you know one when you see it. Or do you?
There have been various attempts to define the term over the years. Writing in the wake of the impeachment of President Bill Clinton, and the turmoil of the 2000 election, the political scientist Keith Whittington noted the speed with which commentators had rushed to declare the country on the brink of a constitutional crisis—even though, as he pointed out, “the republic appears to have survived these events relatively unscathed.”
Whittington instead proposed thinking about constitutional crises as “circumstances in which the constitutional order itself is failing.” In his view, such a crisis could take two forms. There are “operational crises,” in which constitutional rules don’t tell us how to resolve a political dispute; and there are “crises of fidelity,” in which the rules do tell us what to do but aren’t being followed. The latter is probably closest to the common understanding of constitutional crisis—something along the lines of President Andrew Jackson’s famous (if apocryphal) rejoinder to the Supreme Court, “[Justice] John Marshall has made his decision, now let him enforce it.” Or, to point to an example proposed recently by Whittington himself, such a crisis would result if congressional Republicans failed to hold Trump accountable for firing Mueller.
The constitutional scholars Sanford Levinson and Jack Balkin more or less agree with Whittington’s typology, but add a third category of crisis: situations in which the Constitution fails to constrain political disputes within the realm of normalcy. In these cases, each party involved argues that they are acting constitutionally, while their opponent is not. If examples of the crises described by Whittington are relatively far and few between—if they exist at all—Levinson and Balkin view crises of interpretation as comparatively common. One notable example: the battle over secession that began the Civil War.
These three categorizations help show what a constitutional crisis could look like, but it’s not entirely clear how they apply to the situation at hand. Whittington, Levinson and Balkin all agree that the notion of a constitutional crisis implies some acute episode—a clear tipping point that tests the legal and constitutional order. But how do we know this presidency isn’t just an example of the voters picking a terrible leader who then leads terribly? At what point does a bad president doing bad things become a problem of constitutional magnitude, let alone a crisis of constitutional magnitude? Indeed, it’s hard to see a crisis when the sun is still rising every day on schedule, when nobody appears to be defying court orders or challenging the authority of the country’s rule-of-law institutions, and when a regularly scheduled midterm election—in which the president’s party is widely expected to perform badly—is scheduled for a few months from now. What exactly is the crisis here?
Another problem with thinking about America’s current woes as a constitutional crisis involves the question of what comes next. That is, assume for a moment we are in some kind of constitutional crisis. So what? What exactly flows from that conclusion? Normally, constitutional conclusions imply certain prescribed outcomes. When a president is impeached, for example, the Senate must hold a trial to determine whether he or she should be removed from office. When serving a second term, a president is not allowed to run for a third term. But if one concludes that we are going through a constitutional crisis, what happens next? The label doesn’t carry any obvious implication, let alone an action item. If it has value, its value is descriptive. It carries cultural and emotional weight but not much else.
The exact definition may possibly be a topic of scholarly debate, but the question seems to get lost in the avalanche of escalating difficulties. “We” are almost certainly heading into an existential crisis that will swallow that one whole.
Indeed. And the Constitutional Cris is one crack that will become a chasm of existential dilemmas. Eventually, the chasm will widen into an abyss, but each individual crack should not be minimized simply because the abyss is the inevitable outcome.