House Speaker Nancy Pelosi recently agreed with Rep. Jerry Nadler, head of the House Judiciary Committee, that we are indeed in the midst of a “full-blown Constitutional crisis” because “the administration has decided that they are not going to honor their oath of office.”
If we are in a constitutional crisis it’s just one of many since President Trump was elected. In other words, it’s a term that is over-used. Remember the travel ban? Constitutional crisis. The firing of James Comey? Same thing. President Trump’s emergency declaration at the border, ditto even though the first two events were totally within the president’s Article II powers under the Constitution, and the latter under the National Emergencies Act of 1976.
Many agree that we are not at the constitutional crisis moment until either side, the House Democrats or President Trump, bypasses the courts or defies the courts. Conversely, members of the House arresting Treasury Secretary Mnuchin or Attorney General Barr without a court order as some have threatened, if they refuse to comply, would be a constitutional crisis just as Trump ignoring a court order would be. We are not there yet and all the “CC” talk is just drama.
According to a 2017 article by Jack M. Balkin of the Yale Law School, a constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task risking anarchy, violence or civil war. The most important constitutional crisis in our history was the southern states’ secession and the resulting Civil War. The constitution failed us in that instance as politicians and military officials both stated they would refuse to play by the rules of the Constitution.
Heated disputes about the best interpretation of the law or the Constitution are a normal part of American politics and settlement of these disputes through the courts or politics is not a constitutional crisis. It is how a constitution is supposed to work.
While actual constitutional crises are rare, the previously referred to article names a more prevalent malady of constitutions or representative democracies called “constitutional rot.”
It states “Democratic constitutions depend on more than obedience to law. They depend on well-functioning institutions that balance and check power and ambition.” As constitutional rot occurs, our system becomes simultaneously less democratic and less republican. The political system becomes less republican because representatives are no longer devoted to promoting the public good; instead, they seek to maintain themselves in power and please a relatively small set of powerful individuals and groups.”
Our two-tiered justice system of late is very symptomatic of this constitutional rot. We have to make sure that the rules apply to everyone. The House Judiciary Committee holding a U.S. Attorney General in contempt for refusing to violate the law (turning over the fully unredacted Muller Report) is constitutional rot.
The federal government’s powers in the Constitution are supposed to be limited, enumerated and few. Today there isn’t one aspect of our lives that the federal government is not intimately involved in. A federal judge forcing the State of Florida to print ballots in Spanish is constitutional rot. Congress’ dysfunctional stalemate over our broken immigration system could very well be the next real constitutional crisis. When we have no borders what’s the point of having a Constitution? Sooner or later we will see a collapse and then anarchy and violence or civil war are much more likely.
As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U. S. Constitution go to: www.freeconstitutioncourse.com.
Mikie Kerr is a constiutional enthusiast who writes a monthly column for West Hawaii Today.