Avoiding Constitutional Crisis: Understanding The Remedy

A constitutional crisis is a situation in which a political dispute cannot be resolved within the system of rules, norms, and procedures that govern a society. Crises can range from minor to requiring a new constitution and may result in administrative paralysis, the collapse of the government, the loss of political legitimacy, democratic backsliding, or civil war. Constitutional crises may arise from conflicts between branches of government, conflicts between central and local governments, or conflicts among various societal factions. They can also be caused by constitutional vagueness or politically infeasible solutions. In the face of a constitutional crisis, civil society serves as the final defence of democracy.

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The role of the Supreme Court

Congressman Tom McClintock emphasised the importance of the House engaging the Supreme Court to resolve constitutional crises. He cited the example of states filing suits against executive actions that violate the Constitution, urging the House to join these legal challenges. The Supreme Court's role in such situations is to interpret the Constitution and determine whether the executive branch has overstepped its authority.

In the case of a constitutional crisis arising from ambiguity or vague language in the Constitution, the Supreme Court's interpretation sets a legal precedent to guide future similar situations. For instance, the succession of John Tyler to the US presidency established the precedent that a successor assumes the office without limitation. Similarly, the 25th Amendment clarified the procedure for presidential succession, resolving a constitutional crisis resulting from vagueness.

The Supreme Court also plays a crucial role in maintaining the balance of power between the branches of government. When one branch, such as the executive, attempts to consolidate power or usurp the powers of another branch, the Supreme Court can intervene to uphold the constitutional order. For example, in the case of Kilmar Abrego Garcia, the Trump administration's defiance of a Supreme Court order was seen as a challenge to the constitutional system of checks and balances. While the Supreme Court's initial ruling was ambiguous, it later asserted its authority by ordering the administration to facilitate Garcia's release.

In summary, the Supreme Court serves as a critical check on governmental power during constitutional crises. It interprets the Constitution, invalidates unconstitutional acts, sets legal precedents, and maintains the balance of power between branches of government. By doing so, it helps resolve disputes and protect the democratic principles enshrined in the Constitution.

Conflicts between government branches

A constitutional crisis is a severe problem in the function of a government, often due to a conflict between different branches of government, a violation or challenge to the constitution, or a situation where the constitution cannot provide a clear answer. It is important to note that ordinary disputes between government branches are a normal part of a functioning democracy, and only become a constitutional crisis when they cannot be resolved through legal or institutional means.

Another cause of conflict between government branches is the failure to enforce constitutional rules. This occurs when government officials refuse to recognize constitutional authority or enforce laws. For instance, a sitting president may lose an election but refuse to leave office, and no institution is able or willing to enforce the transition of power. This was seen in the 2016 Gambian presidential election, where the incumbent, Yahya Jammeh, rejected the results and refused to step down, ultimately leading to foreign intervention.

Additionally, conflicts between government branches can arise from differences in interpreting the constitution or enforcing constitutional conventions. This may involve disputes over judicial interpretation or the flouting of political customs. An example is the XYZ Affair, where American commissioners bribed French officials, creating a foreign policy crisis and leading to the passage of the Alien and Sedition Acts. The Virginia and Kentucky Resolutions opposed these acts, citing violations of freedom of speech and encouraging states to refuse their enforcement.

To remedy conflicts between government branches and avoid a constitutional crisis, it is crucial to ensure that disputes are resolved through legal and institutional means, and that all branches respect the system of checks and balances. This may involve seeking judicial interpretation and intervention, as seen in the Fiji constitutional crisis, or enforcing constitutional separation of powers, as in the Congo Crisis. Additionally, upholding democratic norms and values, such as the peaceful transition of power, is essential to prevent a breakdown of the constitutional order.

Presidential succession

A constitutional crisis can occur when there is a lack of clarity or ambiguity in the constitution, which can lead to administrative paralysis and even the collapse of the government. One example of this is the succession crisis that occurred following the death of President William Henry Harrison in 1841, just one month after taking office. This crisis was eventually resolved by John Tyler, who assumed the presidency and established the precedent that a successor to the presidency assumes the office without any limitation. This was later codified in the 25th Amendment, ratified in 1967, which clarified the procedure for presidential succession.

The 25th Amendment and the Presidential Succession Act of 1947 outline the presidential order of succession. The vice president is designated as first in the line of succession, followed by the president pro tempore of the Senate, and then the speaker of the House of Representatives. In the event that neither the president nor vice president can serve, the 12th Amendment allows Congress to provide for a line of succession beyond the vice president, which has been done on three occasions.

The Presidential Succession Act specifies that, in the case of a vacancy in the office of the vice president, the next in line are the cabinet officers, in the order of their agencies' creation. The secretary of state is the highest-ranking cabinet member and fourth in the line of succession. It is important to note that those heads of department who are not eligible to hold the office of President are disqualified from assuming the powers and duties of the president through succession and are skipped in the line of succession.

The United States has experienced several instances of intra-term presidential succession, with the vice president succeeding to the presidency on nine occasions: eight times due to the incumbent's death and once due to resignation. While no one lower in the line of succession has ever been called upon to act as president, the terrorist attacks of September 11, 2001, highlighted the need to address potential concerns regarding continuity of government.

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Vagueness in the constitution

A constitutional crisis can lead to administrative paralysis and the collapse of the government, the loss of political legitimacy, democratic backsliding, or even civil war. One cause of a constitutional crisis is vagueness in the constitution. This vagueness can lead to a situation where a political dispute cannot be resolved within the system of rules, norms, and procedures that govern society.

For example, in the United States, a constitutional crisis occurred in 1841 when President William Henry Harrison died just one month into his tenure. The crisis centred around the exact procedure for installing his successor, as the constitution was vague on this matter. It was not until 1967, with the ratification of the 25th Amendment, that a clear process was established. Similarly, in 2000, a dispute over vote tallies in Florida during the presidential election led to a constitutional crisis. While the constitution granted the authority to determine the winning candidate to the House of Representatives in the case of a dispute, the rules governing presidential elections were ambiguous and required interpretation.

Another example of vagueness in the constitution leading to a constitutional crisis can be seen in the case of the South African Coloured Vote Constitutional Crisis in the 1950s. During this period, the white minority government of South Africa unilaterally imposed a system of racial segregation and discrimination against the black majority, known as apartheid. The constitution failed to provide a clear answer to this situation, and the government's actions led to a crisis that ultimately contributed to South Africa's withdrawal from the British Commonwealth and the establishment of a republic in 1961.

In some cases, the constitution may provide solutions to a problem, but they cannot be implemented because they are politically infeasible. For instance, during the Trump administration in the United States, there were concerns that the executive branch was pushing the bounds of its authority and defying the Supreme Court's orders. While the Constitution sets up a system of checks and balances, the administration's actions tested the limits of constitutional democracy.

To remedy vagueness in the constitution and prevent or resolve constitutional crises, several approaches can be considered. One option is to seek clarification and interpretation from the highest court in the land, such as the Supreme Court in the United States. The court's rulings can establish legal precedents to guide future decisions and resolve ambiguities in constitutional administration. Additionally, legislative bodies, such as the House of Representatives, can take action by passing laws or resolutions that address the vague areas of the constitution and provide clear guidelines for their implementation.

Civil society as a backstop

Constitutional crises can range from minor to severe, requiring a new constitution. They can lead to administrative paralysis and the collapse of governments, the loss of political legitimacy, democratic backsliding, or even civil war. A constitutional crisis is distinct from a rebellion, which occurs when political factions outside a government challenge its sovereignty.

A constitutional crisis generally describes a situation in which a political dispute cannot be resolved within the system of rules, norms, and procedures that govern a society. It relates to an inability of governmental institutions to resolve problems in a legal or democratic way within the constitutional system.

Constitutional vagueness can lead to one kind of crisis. Another type occurs when the constitution offers solutions to a problem, but they cannot be implemented because they are politically infeasible. For example, a government may want to pass a law that goes against its constitution, or the constitution may be clear, but following it may be politically infeasible.

In the face of such crises, civil society acts as a final backstop of democracy. Civil society institutions can include the media, academia, businesses, and mass voluntary organizations. These institutions can play a crucial role in holding governments accountable and defending democratic values and the rule of law.

For instance, during the Trump administration, legal experts and court watchers identified instances of the executive branch pushing the bounds of its authority and defying the Supreme Court's orders. This led to concerns about democratic erosion and the undermining of the system of checks and balances. In such cases, a strong civil society can act as a bulwark against authoritarianism and help safeguard democratic norms and institutions.

Coordinated public pronouncements from university leadership, especially from law and medical schools, can assist citizens in understanding the scope of the dangers confronting the country. Additionally, the media can play a crucial role in exposing and publicizing instances of governmental malfeasance and holding those in power accountable. Businesses and mass voluntary organizations can also contribute by advocating for democratic values and supporting initiatives that strengthen civil society.

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