“A Constitutional Crisis is Upon Us”

| By Debra Kirby |

I’m not the only person wondering what constitutes a Constitutional Crisis after watching and reading various news and opinion pieces in recent months, some of which suggest we are now in one. Google searches on the term began spiking in October 2016 and have continued to trend high ever since. I set out to do a little research so I could better judge if the term was being accurately applied to Nadler’s press statements after the judiciary committee voted to hold Barr in contempt of Congress.

After spending an afternoon digging into various expert opinions, I was unable to find a clear consensus around what constitutes a constitutional crisis and whether we are on the brink of one. For example, FiveThirtyEight lists four types of constitutional crisis and gives examples of each, while authors of this Atlantic article note three types and conclude that the current situation has not yet reached crisis level.

My next find was this article by Princeton professor Keith E. Whittington, who begins by explaining that the “…notion of a ‘constitutional crisis’ is not a well-established concept within American legal theory…”

Finally, I found Five Constitutional Crises that Actually Existed at the National Constitution Center website. I was ready to move on to Gale sources like U.S. History In Context to further explore these five events in hopes I might better understand the concept.

• President Harrison dies in office in 1847. William Henry Harrison was the first U.S. president to die in office. The Constitution provided no clear direction on whether the person who succeeds to the presidency is only a temporary replacement or actually becomes the president, with full presidential powers. Vice President John Tyler assumed the office and title of President for the balance of Harrison’s term, setting a precedent that was followed twice within the next twenty-five years. The issue was eventually settled after the 1963 assassination of President Kennedy with the passage of the 25th Amendment in 1967.
• Southern states leave the union in 1861. This overview of the events around the formation of the Confederacy is a good refresher of the events surrounding the most impactful constitutional crisis in U.S. history.
• In the aftermath of the Civil War, the election of 1876 resulted in Republican Rutherford B. Hayes winning by one electoral vote. His Democratic opponent, Samuel J. Tilden won 51% of the popular vote. (Twenty disputed electoral votes ultimately went to Hayes to give him the one vote lead.) The story of this election involves particularly nasty campaign accusations, a delayed outcome requiring a special congressional commission, recounts in four states—including Florida—and dire predictions of a second civil war. The compromise that was reached forestalled another war, but had long-term repercussions for both political parties as well as African American civil rights.
• Watergate: Check out the earlier Gale blog on Watergate for a wealth of information on this Constitutional Crisis.
• And finally, explore the topic page on the most recent example, Bush v. Gore to learn more about the 2000 presidential election that was ultimately settled by the U.S. Supreme Court.

After reading about these five constitutional crises, do you think the United States is currently adding another crisis to this list?