Ginsburg and Huq on How to Define "Constitutional Crisis"
How do we know if we’re in a constitutional crisis? 11 experts explain.
To get some clarity on this, I reached out to 11 constitutional experts and asked them to step back from the latest Trump outrage and answer a more fundamental question: How do you define a constitutional crisis?
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Aziz Huq, law professor, University of Chicago
The concept of a constitutional crisis is not necessarily a pertinent one in our present circumstances. “Crisis” connotes a sharply defined moment of conflict, in this case over the content of constitutional norms.
But the experience of other backsliding countries, as Tom Ginsburg and I have demonstrated in our book How to Save a Constitutional Democracy, is not one of a sequence of “crises.” It is rather a process of slow erosion, often through piecemeal institutional and personnel changes. Far more important than any ”crisis” over a specific subpoena is thus the long-term erosion of Congress’s oversight powers.
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Tom Ginsburg, law professor, University of Chicago
A constitutional crisis is a fight among branches of government in which neither side backs down, and there is no clear resolution within the constitutional system. Crises are dangerous because they tempt players to engage in extraconstitutional action to get their way.
Suppose, for example, that an American president was impeached but refused to leave the White House on the grounds that the Senate trial was not conducted properly. In this example, the crisis might be resolved by the imposition of force — say, the Capitol Police showing up to arrest the president, or the president using his power as commander in chief to order the US Army to protect him. Whatever side would ultimately triumph would be dictated by force, not by law in any direct way.
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