By Tommy Richards, Ph.d
Are we having a constitutional crisis? This question has been asked and answered to the point of exhaustion over the past several weeks, prompted by the series of back-to-back-to-back-(-to-back?…it’s getting hard to keep track) scandals consuming Donald Trump and his administration. Thus far, most pundits and scholars continue to argue that there is no constitutional crisis yet, but we certainly seem to be getting closer to one. Perhaps, however, this is the wrong debate that puts emphasis on the Constitution as a document, whereas the focus really should be on the response of the American people.
First, however, why isn’t this a constitutional crisis (yet)? Although scholars debate the term, in general a constitutional crisis occurs when the proper functioning of the Constitution breaks down in some fashion. Sometimes this failure occurs because two branches are at loggerheads and refuse to give way, other times because the Constitution is silent on the matter in question or its wording is ambiguous. Nothing like that has happened yet – not even close. From a strictly legal perspective, Trump, as president, had the right to fire James Comey, and he had the right to provide classified information to the Russians. Even if he fired Comey in an effort to obstruct justice, we would not reach constitutional crisis status yet, even if he were impeached and then removed from office for it. Why? Because impeachment is written in the Constitution; impeachment is certainly not normal from a historical perspective, but from a constitutional standpoint, it actually shows the Constitution is functioning as intended. Of course, if Trump were removed to office and then refused – now that would be a constitutional crisis.
Of course, if Donald Trump has not engendered a constitutional crisis, he has at least run through the norms of U.S. government at breakneck speed. The United States government is in crisis, even if nothing yet is a constitutional crisis. Hiring Michael Flynn, firing James Comey, spilling secrets to the Russians, accusing Barack Obama of wiretapping him, arguing about the crowd size at his inauguration, filling key White House roles with his family, and enriching his businesses while president – while some of these may be unconstitutional, none of them are normal for a sitting president. They all violate the norms that have grown up around the presidency over more than two centuries of U.S. history. Both the press and the anti-Trump public have been giving too much attention to constitutional issues, and not on the repeated violation of these norms.
But these norms matter, in many ways just as much as the text of the Constitution itself. This may be a surprising statement to most Americans who have been taught to revere the Constitution as one of the two founding documents (the Declaration of Independence being the other) that have given shape to our nation’s history. There is good reason for this reverence. In a nation not founded on a common ethnicity, religion, or primordial history, the Constitution provides a national document – and a national founding – to which all Americans can grab hold. Moreover, the U.S. Constitution is the oldest, continuously working, written constitution in the world, which is a remarkable achievement. Its success is predicated on the immense care the Founders took throughout the document to maintain the separation of powers among the three braches of government and provide many pathways for checks and balances. The Constitution’s hype is undoubtedly deserving.
Yet the Constitution is not without its flaws, particularly in relation to how we regard our country today. The United States today is a democracy, but the Constitution was created in order to curb the excesses of democracy in the states. To the Founding Fathers, “democracy” was a dirty word. At the time, only the House of Representatives was a democratically elected body in the federal government. Moreover, despite its stirring first three lines “We the People,” at the time the people only meant property-owning white men. And, in an obvious but almost always ignored fact: within only a few generations, the Constitution failed utterly. The U.S. Civil War was the great unresolvable constitutional crisis, one in which more than half a million Americans died. Certainly, the United States and the Constitution survived the brutal conflict, but both had been transformed in irrevocable ways.
A few decades before the Civil War, the United States went through another, often-unremarked constitutional crisis. The incident itself is infamous, but it is rarely regarded as a crisis of the Constitution. In the late 1830s, the Cherokee Nation sought to remain in their legally designated lands within the state of Georgia, while neighboring Georgians sought to expel them and take their land. Most white Americans, including President Andrew Jackson (Trump’s favorite!), sided with the Georgians. The Cherokees, acting through their white missionary allies, took Georgia to the Supreme Court – and prevailed. But this didn’t matter. In a likely apocryphal statement that nevertheless epitomizes his attitude, Andrew Jackson stated, “[Supreme Court Chief Justice] John Marshall has made his decision; now let him enforce it!” Jackson let Georgia proceed with Cherokee removal. During the journey west, 4000 Cherokee died of starvation and disease in what has become known as the “Trail of Tears.”
By any definition of constitutional crisis, this was it. The Executive Branch allowed a state government to willfully disobey a ruling of the Judicial Branch. But, ultimately, this mattered little, because Jackson’s action (or, more accurately, inaction) was supported by a majority of white Americans, and most of those who disagreed simply acquiesced. While northern church congregations denounced the maneuver, there were certainly no protests in the streets, nor were pro-removal politicians voted out of office. If anything, Jackson became more popular, particularly in Georgia and other southern states, and continued to cement his legacy as a president for the people – “people” mostly meaning white men. Ultimately, Jackson and his allies ran roughshod over the Constitution, and only posterity has called them to account.
The point, then, is this: just as in the Age of Jackson, in the Age of Trump, the Constitution will not save us. The Constitution is only as good as the American people and the officials they elect. When this country has been at its best, it has not been because of the Constitution, but because of efforts of the American people. Conversely, when it has been at its worst, it is not because of some deep-seated flaw in the Constitution, but because of flaws in the American people. Both rare constitutional amendments and more regular congressional bills have passed because the political will of the American public supported them. Slavery was not abolished, and women did not achieve suffrage, because of measures embedded in the Constitution; both occurred due to the tireless, decades-long efforts of American activists and their allies in the U.S. government. Both of these moments, as well as countless others that we continue to celebrate, were undoubtedly legal actions, but these legal actions only occurred because the political will existed.
In regards to resisting Trumpism, this will undoubtedly exists – at least so far. Americans in the press, in organizations like the ACLU and Planned Parenthood, and Democrats and a very slim trickle of Republicans in many federal and state governments, have pushed back against the Trump agenda. Those of us who do not have work in these influential institutions have still voted, canvassed, protested, donated, debated, called, and written, all in the efforts to bring forth political change. We have realized that we are at, as Never-Trump Conservative Eliot Cohen wrote, “a clarifying moment in American history.”
Over the next months and years, we must continue and amplify our efforts. The only way Trumpism is stopped is through political, not legal, action. This victory can only come at the ballot box, either directly or indirectly. The direct path is obvious: in the 2018 midterms, purge the federal government – and, in regards to ICC, the Pennsylvania state government – of all of Trump’s allies; in 2020, do it again, and ensure Donald Trump does not win a second term. Until 2018, we only have the indirect path: put such pressure on our elected representatives that they will match our enthusiasm in resisting Trumpism (if they are Democrats), or think twice about allying with him (if they are Republicans).
Lately the discussion of impeachment has come up, but it is worth repeating: impeachment is not a legal proceeding, but a political one – in several respects. First, as long as he is president, Trump is immune from criminal prosecution, even if he is guilty of violating the Emoluments Clause and/or obstructing justice by firing Comey. However frustrating this is to anti-Trumpers, it is a logical from a constitutional standpoint: the president’s priority must be the day-to-day affairs of the nation, which cannot be tackled if he is subject to criminal proceedings. Trump must be impeached and removed before criminal proceedings begin. Moreover, whether Donald Trump has violated the Constitution is irrelevant from a political standpoint until a majority of congressmen feel it is in their political interests to vote that he has. Republicans will only reach this state when they realize that they going to be swept away by a tsunami of anti-Trump voters. In regards to Democratic officials, we must continue to speak out to ensure their backbones remain to stiff in maintaining and intensifying their resistance to the Trump agenda.
Beyond impeachment, there has been much talk among progressives about one final method of removal: the 25th Amendment, the fourth clause of which provides for removal of the president via the decision of the vice president and a majority of president’s cabinet (or another body chosen by Congress) in case the president cannot perform his duties. The purpose of this clause is to ensure a swift transition in case of a president’s medical illness. A president incapacitated by a stroke, for example, should not have to be publicly questioned by Congress to be removed (temporarily or permanently) from his duties. While to many of us Trump appears dangerously unhinged, he is not medically unfit – or, at least, no more so than when he was elected in November. Unless a new medical situation arose, there is no reason to think Mike Pence and Trump’s cabinet – selected by him, and therefore loyal to him – would remove him before Congress would via impeachment proceedings. If it comes to a point where men like Pence, Jeff Sessions, and Tom Price believe Trump should no longer be president, then it is almost certain that a majority of congressional Republicans would have already arrived at that conclusion months prior – and they would only do so because a majority of the country had arrived at this decision before them, and were feeling the political heat.
In the end, change doesn’t come through the Constitution or the Founding Fathers. It can only come from us, the American people.
About the author:
Tommy Richards possesses a Ph.D. in history from Temple University, teaches at several local universities, and lives in Chester County.