We could use a good constitutional crisis every once in a while.
We could use a good constitutional crisis every once in a while.

To the political Chicken Littles on the left, I offer this predictive viewpoint as a comforting and assuaging assurance.  The sky is not falling.  We are not into, on the verge of, or even facing the prospect of an imminent constitutional crisis.  The Republic, for all the ever-present threats to its continuation, is not on the verge of collapse – at least not imminently. Independence Day was a movie.  So, you can stop all this hyper-hysteria that is scaring the children.

Only once in our nation’s 218-year history did this great nation suffer a real constitutional crisis, and that was when those pesky slave-loving Democrats attempted to set up their own unconstitutional and immoral nation south of the Mason-Dixon Line.  Every other so-called constitutional crisis – including Franklin Roosevelt’s attempt to pack the Supreme Court, Nixon’s Watergate caper, Clinton’s fibbing under oath about his Oval Office cigar habit, Bush’s 2000 chad-hanger election and even today’s debate over a president’s power to pull the immigration welcome mat – are merely constitutional questions.  They were not crises or threats to the Republic or the Constitution under which it is governed.

In fact, we often face similar, if not quite so spectacular, misnamed “constitutional crises” in every presidential administration.  On those occasions that President Obama issued constitutionally dubious Executive Orders, it was most certainly a constitutional question – but not a crisis.  It was settled by the Supreme Court which struck down those that did not pass constitutional muster.  In fact, every time the Supreme Court hears a case it is a constitutional issue – never a constitutional crisis.

The Russian attempts to influence our elections and our political process is most certainly a criminal assault by a foreign adversary, but again, not a constitutional crisis.  The fact that our Constitution protects our right to life doesn’t mean that every murder is a constitutional crisis.  It is simply a law enforcement issue. Same with the Ruskies. 

Saying that President Trump is creating all kinds of constitutional crises and posing a threat to the Republic is partisan nonsense on steroids.  For more than a year, critics have raised dreaded consequences if Trump were to fire James Mueller, Rod Rosenstein and others -- even though he has the legal authority to do so – but he has not despite the endless and baseless speculation by political enemies and the press. It would, they say, create a constitutional crisis.  It may create a political maelstrom, but not a constitutional crisis.  They say his harsh criticism of the press creates a constitutional crisis.  Despite the obvious implied self-importance inherent in that claim, it, too, is not a constitutional crisis.  It’s called free speech.

If Trump were to use the military to disband the Congress or close the Supreme Court, THAT would be a constitutional crisis.  Issuing even a questionably constitutional Executive Order is not a crisis any more than all those laws passed by Congress that were struck down as unconstitutional.

They say that Trump is an authoritarian.  But, isn’t he the one who said that he does not have the authority to provide amnesty for the Dreamers?  Isn’t he the one agreeing with constitutional scholars who say that only the Congress has the authority?  That does not sound like the work of an authoritarian.  Even his ban on immigrants from nations associated with terrorism and with poor vetting policies has been largely upheld by the Supreme Court – and will be ultimately and finally settled by the same.  In fact, it would be virtually impossible to find any action by Trump that can be said to undermine the Constitution.  The Constitution is the rule book and the Supreme Court the referees.

If you look back at the major impeachment efforts – Andrew Johnson, Richard Nixon, Bill Clinton and speculatively Donald Trump -- none of these events posed a constitutional crisis.  Nothing these presidents did was an attack on the Constitution.  They were subjected to impeachment or threats of impeachment based on illegal or immoral conduct … period.  They may have caused a political conflict, but in each case, the situation was resolved in accordance with the Constitution – not in defiance.

It is one thing to not like how a president may use his authority or how he conducts himself personally, but quite another to suggest he is exceeding his constitutional authority.  One might even argue that those who are determined to drive a constitutionally elected president from office are, themselves, attempting to create a constitutional crisis.  But even that does not rise to the level, since the goal, no matter how hyper-partisan or reprehensible it may be, is to be achieved according to the Constitution.  The efforts to have electors violate their sworn duty, attempts to have Congress refuse to inaugurate Trump and the misguided attempts to invoke the 25th Amendment to take Trump out of the presidency were all attempts to use the Constitution – abusively, ergo unsuccessfully – to achieve a political goal.  Their efforts were trumped, so to speak, by the Constitution.

 Except for the Civil War, our Constitution has worked like a well-oiled machine.  It has provided a solid foundation for this democratic republic for more than two centuries. It is a work of genius and nobility.  It has produced the longest continuous democracy on the planet.  Our Founders departed from the zeitgeist of the times – a world of nations ruled over by authoritarians of one sort or another -- to give sovereignty to we the people.

Attempts to undermine the Constitution have not and are not likely to come in grand controversial events.  They will come from almost imperceptible evolutionary morphing of the meaning and protective nature of the Constitution --  from assaults on free speech and religious tolerance in the name of political correctness, from a disunifying Balkanization of America through identity politics that supplant e pluribus unum, and from shifting the epicenter of governance away from the local community, where we the people can exercise maximum influence, to a more distant and less accountable government in which the greatest influence is exerted by an elite class.

The greatest threat to our constitutional republic may come from Supreme Court justices who do not respect the words and meaning of the Constitution, but rather see their role as activist lawgivers who, tempered by political philosophies that are inconsistent with constitutional principles, bend to the political winds of the moment rather than upholding the basic inalienable rights so clearly enumerated in the document.

Our Constitution does not work because of the personal freedoms we individually assume and enjoy, but because of the freedom and tolerance, we individually give to others.  As long as we do not lose sight of that, there will never be a constitutional crisis in America.

Larry Horist is a conservative activist with an extensive background in economics, public policy and politics. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman, as well as the White House. He has testified as an expert witness before legislative bodies, including the U. S. Congress, and lectured at major colleges and universities. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He can be reached at lph@thomasandjoyce.com.




Audience Index: 75