Friends asked me to discuss the “constitutional crisis” that the media seems to think is imminent.
My starting point is to explain that the Constitution is not static. It has changed in big and small ways; scholars have identified three major constitutional transformations.
The first came before we even had a national constitution. The newly-independent states were bound together by the Articles of Confederation, which were not considered adequate for governing the emerging nation. Therefore, men got together in 1787 in Philadelphia ostensibly to reform those Articles. Instead, they drafted a new constitution which was adopted by the requisite nine states the next year. A new government came into being. Our government today depends on that eighteenth century document, and it is controlled by the constitution much as it was back then.
Early on that founding document was seen as needing changes. Some states only ratified the Constitution with the understanding that a Bill of Rights would be added. The first Congress proposed twelve amendments, ten of which were adopted and went into effect in 1791. These additions mostly announced rights people assumed they already had and did not change the structure of the government. However, a decade later a major flaw in the document was exposed by the election of Thomas Jefferson and Aaron Burr. As a result, the Twelfth Amendment was adopted modifying the electoral college. From its inception, therefore, the Constitution has been subject to change.
The first significant transformation of the Constitution, however, came from the Civil War and its aftermath. The war occurred partly because of a major flaw in the document itself. Instead of confronting the issue of slavery, the founders tried to avoid it or make feeble compromises about it. As a result, slavery was not merely a stain on the fabric of the Constitution but woven into it. Various factions pulling at the threads and cords of slavery from all directions challenged the constitution, and war came.
In the war’s aftermath, three amendments to the Constitution were passed. The Thirteenth Amendment abolished slavery. The Fifteenth Amendment granted Black males, but not women of any color, the right to vote. These two amendments were transformative, but they were only partially successful. Slave-like practices continued to exist in the country, and within a decade of the adoption of the Fifteenth Amendment, the right to vote was stripped from most Blacks.
The Fourteenth Amendment, although it has several provisions, reshaped our Constitution by commanding that no state “shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The original Constitution did little to constrain the states in their treatment of inhabitants. The Fourteenth Amendment, as interpreted by the Supreme Court, changed that. For example, the Court held that the amendment’s due process clause prevented a state from taking a person’s property without just compensation. In the early twentieth century it held that the state could not abridge free speech. Over time, the Court increasingly prohibited the states from interfering with rights guaranteed in the Bill of Rights. The Court, relying on the Fourteenth Amendment, also said segregated state schools were unconstitutional and that states must afford one person, one vote. The constitutional crisis of the Civil War produced a Fourteenth Amendment that transformed the relationship between courts and individuals by expanding and clarifying constitutional rights.
The next major constitutional transformation came during the Great Depression. The Supreme Court had found unconstitutional many state and federal laws regulating businesses. This crescendoed during Franklin Roosevelt’s first term when the Court deemed unconstitutional much New Deal legislation that had been passed by Congress to alleviate the harsh economic conditions. FDR responded by proposing that the Court be expanded. Critics called it “court-packing.” Although the causes are debated by historians, lo and behold, after the court-packing proposal, some justices modified their opinions and now upheld federal powers to regulate business and other activities. The Civil War transformation expanded judicial powers to protect individuals and entities from the government. The Great Depression transformation expanded the power of the federal government to regulate activities affecting “interstate commerce,” which has been broadly defined. The decisions of the New Deal Supreme Court provide the basis for much of the federal government’s regulatory power today.
So. Are we now in the midst of another constitutional crisis? Are we due for another constitutional transformation? I see not one possible scenario, but several.
Conservatives look at our government and see a bloated bureaucracy that was not contemplated by the Constitution. It is entrenched but not elected. That bureaucracy, though authorized by Congress and the president, often seems to act independently of Congress and, more importantly, the president. Although it appears to be part of the executive branch of the government, the bureaucracy often sets and follows its own guidelines and policies. Thus, conservatives see a bureaucracy that is too often resistant to the policies of the president, and they find this in violation of the constitution. This unconstitutionality in the conservative eye must be put to rights. A constitutional transformation is needed to restore the balance that our Constitution contemplates where the president sets and enforces executive branch policies. And, under Trump, conservatives maintain we are seeing the beginning of that needed constitutional transformation.
On the other hand, some, but not all, liberals see a different potential constitutional crisis. Many of Trump’s actions and orders, they claim, have been in direct conflict with specific provisions of the Constitution (e.g., birthright citizenship), have been in violation of the separation of powers, or have violated the constitutional duty of the president to “take care that the laws be faithfully executed.” And while conservatives see a constitutional crisis in an unelected bureaucracy, liberals see a crisis in the unfettered authority exercised by an unelected Elon Musk who has not been appointed to a Senate-confirmed position the Constitution seemingly requires.
Other liberals may be concerned about the administration’s actions, but they don’t see a present constitutional crisis. They see the system working because the courts have been hearing challenges to Trump’s and Musk’s orders. This is the normal constitutional process, and Trump has said that he will follow the judicial process. Almost all the court rulings have been in the federal district courts, which are the lowest level of federal courts. Following decisions in the district courts, those findings can be appealed to the Court of Appeals. Then the losing litigant may seek to have the Supreme Court hear the matter. (There is no right to have the Supreme Court hear these cases; it is in the Court’s discretion.) Many maintain that as long as this process is being followed, there is no constitutional crisis.
Even so, liberals who don’t see a present crisis, are concerned about a future constitutional transformation. Many, probably most, constitutional scholars believe that under existing Supreme Court rulings, many of Trump’s actions violate the Constitution or existing laws. The first fear is that the current conservative Supreme Court will ignore or overturn the precedents and uphold Trump’s actions. That is, that the Supreme Court will reinterpret the Constitution and laws to give the president even more power than he now has. This will, in effect, remake the Constitution by taking away congressional authority and individual rights and make an already powerful president even more powerful. As it did with its presidential immunity decision, the Supreme Court could transform our government to make the president more kingly, more authoritarian.
The other liberal fear is not of the Supreme Court but of Trump himself. Even though he has said otherwise, the fear is that Trump will either not use the appellate process and just keep bulldozing ahead, or even if he does follow normal procedures, he will not obey Court orders that go against him. He will ignore or defy the judiciary. Of course, he said he wouldn’t do that, and he did not disobey the courts in his first term. However, those around him have suggested that he will this time if courts don’t rule his way. And just as you can find Trump statements that he will honor the judicial process, like the devil quoting the Bible, you can find other Trump pronouncements, such as his recent statement: “He who saves his Country does not violate any laws.”
Presidential defiance of the courts would be a true constitutional crisis, perhaps a fatal one. His recent statement about not committing illegalities when saving the country is ascribed to Napoleon, but precedents go back further into history. Julius Caesar broke the law and illegally marched his troops, loyal to him more than to the nation, across the Rubicon and into Rome. The fall of the Roman Republic began, and a dictatorship took its place.
