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PaperclipPerfector  3mo ago (text post)   2926 thread views

Small-Scale Question Sunday for April 19, 2026

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Can anyone explain just what exactly a "constitutional crisis" is supposed to be, and how such a thing constitutes a crisis, as opposed to an easily-resolved dispute that changes little but clearing away illusions and making the status-quo more transparent?

The best answer I have seen, and it isn't a great one, is this law review article by (left-wing lawprofs) Jack Balkin and Sandy Levinson (henceforth B/L)

They identify three types of constitutional crisis:

  1. A political actor openly violates the constitution, typically citing necessity in an emergency or some kind of extra-constitutional plebiscitary mandate, and nobody is able or willing to stop them.
  2. Something needs to be done but isn't because there is no constitutionally regular way of doing it and nobody is prepared to trigger a type 1 crisis.
  3. People disagree about what is and is not constitutional and the normal tools of constitutional adjudication can't resolve the dispute, so people turn to (threatened or actual) political violence instead.

The traditional paradigmatic examples (not cited by B/L) are:

  1. Sulla and Caesar's coups against the Roman Republic
  2. The unanimity requirement in the Polish Diet making the Polish Commonwealth unable to defend itself because foreign enemies only needed to bribe one Diet member.
  3. The English and American Civil Wars.

B/L are good on what is not a constitutional crisis - for example anything which can be resolved by SCOTUS is a normal dispute, not a crisis; impeachment is an extraordinary but regular remedy for Presidential misbehaviour, not a crisis; the controversial use of emergency powers in a real emergency is a crisis, but not a constitutional one.

B/L are less good on what is a constitutional crisis - partly because the US Constitution mostly works so true constitutional crises by their definition are rare. (Also it will never be clear whether something is a type 2 crisis or not because it isn't clear what action is actually necessary). They say there has only been one clear-cut type 1 crisis in America since independence - and it was right at the beginning, with the Constitutional Convention going rogue and the Constitution being adopted in violation of the amendment procedure set out in the Articles of Confederation. They identify two cases of type 2 crises that they think are clear-cut:

  • The 1800 election, where the Federalist majority in Congress was required to break a tie between two Democratic-Republican candidates for President, but had no incentive to do so. (They say this crises was only resolved by Democratic-Republican states near Washington DC threatening to send their militias to compel Congress to act).
  • The 1861 secession crisis, where both the lame-duck Buchanan administration and the incoming Lincoln administration thought that secession was illegal, but neither thought there was anything constitutional they could do about it.

The biggest flaw in the paper is that B/L don't think about game theory. There are a number of cases where actor A threatens to violate the constitution (triggering a type 1 crisis) or to use dubiously constitutional hardball tactics (triggering a type 3 crisis) and actor B acquiesces. B/L consider this to be a dispute resolved within the constitutional framework, but it isn't. They give numerous examples of Roosevelt getting his way with this type of threat, both during the New Deal and during WW2.

The other obvious gap (which B/L acknowledge) is that their framework doesn't really work in an environment of pervasive government secrecy. If the President violates the constitution but doesn't get caught, is it really a constitutional crisis?

It also overlooks constitutional crisis in the sense where the tension between the constitution-as-written and the constitution-as-applied is too great, and when the illusion finally drops, it's a disaster.

The trivial example is 'what happens if the President just says nope to the courts, end stop'. We know what happens, here! There's literally a hundred and fifty year-old overt example where the President just told the Chief Justice of the Supreme Court to shut the fuck up, but there's more recent versions, too, from the bottom to the top. The only 'real' meaning the judicial system, even assuming everything is working by the book, is to let criminals go free and make bad publicity for the executive branch; anything less than two thirds of the Senate means bupkis. So the worst that a President explicitly ordering the executive branch to just completely and clearly ignore a court order (or SCOTUS to order something that's physically impossible) is let everyone know what's already been the rules.

Uh, what do you think happens once everybody knows that? Every outrageous Fourth Amendment example, every popular law overturned or unpopular law upheld, every civil tort that came across as dumb, what happens when a large voting block forms that demands, rather than changing the law or the judges, just doing it anyway?

But wait, it gets worse! There's a lot of that tension that people just haven't sat down and thought about, hard. Some of it pretty stupid. We just haven't explored it yet because there was no cause. What happens if the entire Congressionally authorized budget for the judicial branch (including security) gets spent on a bulk order for paper, day one?

I wrote up a big post on this when someone here asked how we'd go from modern disagreements to a civil war, and I'm absolutely not publishing it publicly, and there's a dozens of things significantly worse than that. Maybe some of them have resolutions I'm not aware of. And even the ones without resolutions aren't necessarily going to escalate on their own: Nothing Every Happens is a bet that wins 99% of the time.

That's not an optimistic thought if you can do statistics.

It also overlooks constitutional crisis in the sense where the tension between the constitution-as-written and the constitution-as-applied is too great, and when the illusion finally drops, it's a disaster.

This is the sense I encounter a lot, but I don't understand how it constitutes a disaster, rather than simply clarifying that "the constitution-as-applied" is the actual (small-c) constitution, the actual way our government works and will continue to work, and that "the constitution-as-written" is entirely some old dead piece of paper with no power whatsoever.

I've debated this myself at length and I don't think there's a good publicly agreeable definition of the term.

But I'd use a working definition of "a situation which creates or encounters an edge-case in constitutional interpretation that demands either you ignore some clear constitutional rule, or adhere to the rule in a way that causes some serious harm to the country or its institutions."

I'd argue that the 'crisis' implicated in such a case would be that we end up with enough individual states adopting and insisting upon differing interpretations that it reduces the willingness to accept the entire instrument.

The most central example I could imagine is congress issuing a rule that, for instance, forcibly conscripted residents of only certain states for military service, and explicitly exempted others, maybe arguing that certain states were more critical for manufacturing or technical knowledge whilst others had higher populations and thus could bear the losses easier. And a divided Supreme Court upholds this in a 5-4 decision, and the President carries it out with aplomb.

This would be pretty 'crisis-like' because the Constitution does grant the authority to "raise armies" but doesn't explicitly lay out the limits on that power... and if given coalition of states could use their legislative heft to pass such a law over the objection of the 'victim' states, that would probably trigger some rebellious murmers and resistance. But if there was an active war that demanded conscription, rebellious states are also posing a national security risk.

Yeah, the overlap of military powers and state sovereignty are probably the areas most ripe for crisis territory.

Thus, I would absolutely argue that the Civil War was the original Constitutional Crisis, with the fundamental conflict being the fact that slavery was acknowledged... but not condoned in the original instrument, but also it would be impossible to remove it without the cooperation of a large contingency of states that were pro-slavery. And that there was no explicit right of secession outlined in there.

Charitably and technically, it's any time the function of government doesn't follow the constitutional rule. When the structure of the constitution runs into the practice of power in reality.

Realistically and politically, it's whenever the opposing side does something that can even tendentiously be considered a constitutional issue.

But there are and will be actual crises. The constitution has been partially suspended using military and emergency powers (Lincoln, FDR, etc.). The Supreme Court has decided presidential elections, and so have private political parties. The President has started an awful lot of wars without a declaration of war.

In reality, unconstitutional behavior only becomes a constitutional crisis if another branch of government is fighting you on it, and both sides are relatively evenly matched.

In reality, unconstitutional behavior only becomes a constitutional crisis if another branch of government is fighting you on it, and both sides are relatively evenly matched.

Exactly, and I don't see how that latter condition in particular ever arises.

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