CRF Blog

Constitutional Rot and Constitutional Crisis

by Bill Hayes

In Constitutional Rot and Constitutional Crisis for the legal blog Balkinization, Jack Balkin argues that the United States is not approaching a constitutional crisis, but it is experiencing what he calls “constitutional rot,” the decay of norms and institutions undergirding our democracy.

As Sandy Levinson and I have explained, there are three types of constitutional crises. In Type One crises, political leaders announce that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them. In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster. In Type Three crises, political disagreement about the Constitution becomes so intense that the struggle goes beyond the bounds of ordinary politics. People take to the streets; there are riots; the military is called out to restore order (or suppress dissent); political figures threaten violence or engage in political violence; or parts of the country revolt and/or attempt to secede.

Constitutional crisis is very rare, and nothing that has yet happened in the Trump Administration — including the Comey firing — comes even close. But people are right to think that something important — and dangerous — is happening to our political institutions. That is why, I think, people so often reach for the term “constitutional crisis” to describe it.

In this essay, I want to introduce a new idea to explain our current predicament. I will distinguish constitutional crisis, which is very rare, from a different phenomenon, which I think better describes what is happening in the United States today. This is the idea of constitutional rot. [more]