Why does it matter if a crisis is “constitutional”?

May 13th, 2017

Over the past week, I’ve debated at some length whether we are living through a “constitutional crisis.” The simple answer is no, though I doubt I’ve convinced anyone who was not predisposed to agree with me.

To that end, I’ll focus on a different question: Why does it matter if a crisis is deemed “constitutional,” rather than political? Make no mistake. This is not merely an in issue of nomenclature. Advocates elevate an issue to the level of “constitutional” in order to raise it above the rank partisanship of our polarized society. This strategy is nothing new. Throughout our history, social movements–such as the Abolitionists and the Suffragists–have invoked the Constitution to separate a situation beyond the partisan vicissitudes of the moment. If I douse water on this mania, and refer to an issue as “political,” then it is entirely acceptable, and indeed expected, for Republicans and Democrats to behave precisely how they would otherwise behave. But if the issue is of a constitutional nature, then brave, noble statesmen can write their very own profile in courage.

For an illustration, look no further than Laurence Tribe’s recent Op-Ed in the Washington Post, calling for the impeachment of President Trump:

We will require serious commitment to constitutional principle, and courageous willingness to put devotion to the national interest above self-interest and party loyalty, for a Congress of the president’s own party to initiate an impeachment inquiry. It would be a terrible shame if only the mounting prospect of being voted out of office in November 2018 would sufficiently concentrate the minds of representatives and senators today.

Viewing Trump’s acts in a constitutional framework serves as a clarion call to transcend party.

I offer this quote in the final paragraph of Karen Tumulty’s piece in the Washington Post:

With Trump’s approval ratings already at record lows for a president at this early point in his term, public opinion will be an important factor. Republicans are already bracing for a difficult midterm election next year — and some fear that their control of the House may be at risk.

In the end, public perceptions may matter more than the letter of the law in determining if and how Trump weathers the most severe storm to hit his turbulent young presidency.

“This remains, I think, a political problem only,” Blackman, the law professor, said. “What will take Trump down is not the Constitution, but public opinion polling and the ballot box.”

In any event, for easy access, Jurist has archived the submissions from November 1998 to the House Judiciary Committee Subcommittee on the Constitution concerning the Hearing on the Background and History of Impeachment.