Constitutional Crisis: A Nation Undecided

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. While the concept is often contested, it generally refers to the inability of governmental institutions to resolve problems in a legal or democratic way within the constitutional system. Experts have categorized constitutional crises into different types, including those caused by a lack of guidance in the Constitution, differences in interpretation, political infeasibility, and the failure of structures. Examples of constitutional crises include the South African Coloured vote constitutional crisis in the 1950s, the 2000 US presidential election dispute, and the ongoing crisis in Somalia as of 2024.

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A government may want to pass a law that goes against the constitution

Another reason could be a belief that the exigencies of a situation require a public violation of the constitution. For instance, in times of war or national emergency, a government may argue that certain constitutional protections need to be suspended or ignored for the sake of national security or public order. This was the case in the early 1930s in Estonia, where two constitutional reforms were rejected, and a self-coup by the Prime Minister occurred, replacing the parliamentary republic with a presidential one.

A government may also pass laws that go against the constitution due to a failure of the checks and balances system. This can happen when other branches of government, such as the judiciary or legislature, fail to hold the government accountable for its actions. An example is the Trump administration, which has been accused of defying constitutional norms and the Supreme Court, with Congress remaining silent.

Additionally, a government may want to pass a law that goes against the constitution due to a difference in interpretation or a lack of guidance within the constitution itself. This can lead to political disputes that cannot be resolved within the existing system of rules and procedures, resulting in a constitutional crisis. For instance, in 1990, King Baudouin of Belgium refused to give Royal Assent to a law on abortion, which was resolved by temporarily declaring him incapable of reigning and having the Council of Ministers give assent instead.

Finally, a government may seek to pass laws contrary to the constitution due to political infeasibility. In such cases, the constitution may offer solutions to a problem, but they cannot be implemented due to political factors or a lack of support. This was seen in the 2000 US presidential election, where a dispute over vote tallies in Florida was taken to the Supreme Court despite constitutional remedies, indicating a breakdown of the checks and balances system.

The constitution may fail to provide a clear answer

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. The concept is often contested, and while experts disagree on the definition, most think there have been only a handful of true constitutional crises.

One of the reasons a constitutional crisis may occur is when the constitution fails to provide a clear answer to a specific situation. This can happen when the constitution is vague or ambiguous, or when it offers solutions that cannot be implemented due to political infeasibility. For example, in the 2000 US presidential election, there was a dispute over vote tallies in Florida that was taken to the Supreme Court, despite constitutional remedies. While the authority to determine the winning candidate rests with the House of Representatives, the constitutional rules governing presidential elections needed to be "interpreted and supplemented".

Another example of constitutional vagueness leading to crisis is the case of the Australian federal government dismissal in 1975.

Additionally, Levinson and Balkin identify three types of constitutional crises. Type one crises arise when political leaders believe that exceptional circumstances require them to publicly violate the Constitution. Type two crises occur when adhering to the Constitution leads to ruin or disaster. Type three crises involve publicly articulated disagreements about the Constitution, leading to political actors engaging in extraordinary forms of protest beyond legal and political disagreements.

Furthermore, Julia Azari and Seth Masket propose four categories of constitutional crises:

• Crises caused by a lack of guidance in the Constitution.
• Crises caused by differences in interpretation.
• Crises caused by the limits of political feasibility.
• Crises caused by the failure of structures.

These categories provide a more detailed framework for understanding how the vagueness or ambiguity of a constitution can contribute to a constitutional crisis.

Political leaders believe exigencies require public violation of the Constitution

While there is no universally agreed-upon definition of a constitutional crisis, it generally refers to a situation where a political dispute cannot be resolved within the system of rules, norms, and procedures that govern a society. The concept is often invoked in the context of political crises, where the constitution is perceived to be ambiguous, inadequate, or ignored.

Political leaders may believe that exceptional circumstances justify taking actions that publicly violate the constitution, which can lead to a constitutional crisis. This type of crisis, as defined by Levinson and Balkin, arises when "political leaders believe that exigencies require public violation of the Constitution".

One example of this type of crisis is the 2018 constitutional crisis in Pakistan. Following a no-confidence motion against Prime Minister Imran Khan, the deputy speaker of the National Assembly rejected the motion. Prime Minister Khan then advised the President to dissolve the National Assembly, which was unconstitutional given the pending no-confidence motion. This crisis resulted from the Prime Minister's interpretation of the situation as an exigency that justified violating the constitution.

Another illustration is the 1951-1955 Coloured vote constitutional crisis in South Africa. The National Party government disputed a Supreme Court decision that overturned its Separate Representation of Voters Act, which sought to disenfranchise Coloured voters in the Cape Province. The government attempted to reverse the decision through an ad hoc court, but this effort was also overturned. Consequently, the party used reforms to the Senate to pass the measure legally, demonstrating their belief that the exigency of maintaining voter segregation outweighed fidelity to the constitution.

In some cases, a constitutional crisis can arise when the constitution is clear, but political leaders find it impractical or impossible to follow due to the circumstances they face. An example of this occurred in Belgium in 1990 when King Baudouin refused to give Royal Assent to the law on abortion, citing his religious beliefs. To resolve this crisis, the Belgian government controversially declared the king temporarily incapable of reigning, allowing the Council of Ministers to give assent as per the constitution, before restoring the king's capabilities.

While the above examples demonstrate situations where political leaders believed that exigencies required violating the constitution, it is important to note that not all crises of this type involve such extreme actions. Sometimes, the crisis may result from a failure to follow established procedures or a disagreement over the interpretation of constitutional provisions.

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The constitution offers solutions, but they can't be implemented

The concept of a constitutional crisis is generally understood as a situation in which a political dispute cannot be resolved within the system of rules, norms, and procedures that govern a society. While the term is often used in political discourse, experts disagree on its precise definition, and true examples of constitutional crises are considered rare.

One type of constitutional crisis occurs when the constitution offers solutions to a problem, but they cannot be implemented due to political infeasibility. An example of this was the 2000 US presidential election, where a dispute over vote tallies in Florida was taken to the Supreme Court despite constitutional remedies. While the House of Representatives has the authority to determine the winning candidate in case of a dispute, the constitutional rules governing presidential elections were interpreted and supplemented by the Supreme Court, which ultimately handed the victory to George W. Bush.

Another example of political infeasibility is the ongoing constitutional crisis in Somalia. When Somali President Hassan Sheikh Mohamud changed the country's constitution in April 2024, it was immediately opposed by the President of Puntland, who invoked Article 4 of the Puntland Constitution to declare independence from the Federal Government of Somalia. This resulted in a breakdown of relations between the two regions and highlighted the challenges of implementing constitutional solutions in politically charged situations.

Constitutional crises can also arise from a lack of clear guidance or differences in interpretation of the constitution. For instance, the Sedition Act of 1798 in the US criminalized criticism of the government, testing the young First Amendment. The act was seen as a claim by the Federalists, the party in power, that circumstances merited disregarding the amendment's guarantees. The potential for the Supreme Court to overturn the law was unlikely, eliminating any recourse for those upholding the constitutional protection.

The interpretation of the constitution can also be manipulated by those in power to serve their interests. For example, the phrase "It's not unconstitutional if you're saving the country" has been attributed to former US President Donald Trump, echoing the Führerprinzip of the Third Reich. Trump's administration has been accused of defying constitutional norms, issuing executive orders, purging agencies, and intimidating institutions outside of the government to do its bidding. These actions have raised concerns about the failure of the legislative and judicial branches to check the power of the executive.

Political dispute cannot be resolved within the system of rules

A constitutional crisis is a situation where a political dispute cannot be resolved within the system of rules, norms, and procedures that govern a society. It involves an inability of governmental institutions to resolve problems through legal or democratic means within the constitutional system. This can occur when the "checks and balances" of power break down without clear recourse, threatening the stability of the political system.

There are several types and causes of constitutional crises. Levinson and Balkin identify three types: Type one crises occur when political leaders publicly violate the Constitution due to perceived exigencies. Type two crises arise when adhering to the Constitution leads to ruinous outcomes. Type three crises involve intense disagreements about the Constitution that drive political actors to resort to extraordinary forms of protest beyond legal and political channels.

Other scholars, like Julia Azari and Seth Masket, have proposed different categories, including crises caused by a lack of guidance in the Constitution, conflicting interpretations, political infeasibility, and structural failures.

Historical examples of constitutional crises include the Sedition Act of 1798 in the United States, the Easter Crisis of 1920 in Denmark, the 2000 US presidential election dispute, and the 2022 no-confidence motion against Pakistani Prime Minister Imran Khan.

The term "constitutional crisis" has been invoked in various contexts, such as disputes between Texas officials and the Biden administration, and the investigation into former President Donald Trump's actions. Some scholars argue that these situations do not qualify as full-blown constitutional crises, but they highlight growing tensions and challenges to democratic norms.

Constitutional crises can have significant consequences, including the breakdown of governmental institutions, the erosion of democratic values, and even the rise of authoritarianism. Preventing and resolving constitutional crises requires a delicate balance between upholding constitutional principles and adapting to changing political realities.

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