We recently posted an article at FiveThirtyEight describing four main types of constitutional crises, with an effort to explain just what kinds of crises we may be facing now. Without getting too into it, the simple takeaway is that despite much hand-wringing on the subject, we’re not necessarily in a constitutional crisis at the moment.
If President Trump has committed high crimes or misdemeanors, there is a remedy for that built into the Constitution. We’re seeing different facets of the political system right now — including journalists, judges, political activists, the intelligence community, and at least some members of Congress — responding appropriately to a crisis that is political, not constitutional, in nature.
But this isn’t the whole story. Even if the Constitution is functioning more or less as designed, that’s not necessarily cause for celebration. Indeed, the Constitution’s design effectively excludes many people from its protections. Many Americans today face a different sort of constitutional crisis — the Constitution works fine, just not for them.
Political observers got a great example of this sort of thing recently when Senate Majority Leader Mitch McConnell silenced Sen. Elizabeth Warren as she was preparing to read Coretta Scott King’s criticisms of then-Sen. Jeff Sessions, under consideration for attorney general. Several of Warren’s male colleagues were permitted to read the exact same criticisms later, but McConnell used an obscure Senate rule, originally designed to protect slave owners from political criticism, to silence his female colleague.
The Constitution, of course, permits the House and Senate to develop their own rules for running their chambers and affords chamber leaders broad discretion in executing those rules. But it was hard not to see this august institution functioning better for some members than it did for others.
To some extent, this is obvious. We all know that the Constitution, in its original form, functionally excluded African Americans from political participation and counted each as three-fifths of a person for the census. We know that women couldn’t vote for more than a century of the nation’s existence. We know that Native Americans were excluded from the Constitution’s vision, and that the successful expansions of the early nation came at their expense.
But these aren’t just bugs in the original software rollout that were patched over time. Many such democratic inequalities have continued to plague the system and have been found to be entirely consistent with the Constitution. Just to name a few examples:
- Japanese Americans were forcibly removed from their homes during World War II via an executive order. The Supreme Court found this constitutional, noting the president’s broad powers during wartime.
- Representation in the US Senate grants equal numbers of senators to each state regardless of population, meaning that smaller and whiter states end up with an outsize voice in governing. As a result, those citizens have a larger voice in the Electoral College, as well.
- States have broad authority to draw up their own legislative districts and set rules on voter participation. These decisions may end up reducing the political impact of people of color and poorer people.
Our earlier piece highlights the extent to which constitutional stability has propped up oppressive policies. The constitutional question at the heart of the civil war was about secession. Slavery was the catalyst for the departure of the “erring sisters,” but the principles that Union soldiers fought to defend were, at least initially, defined in terms of the integrity of the nation, not the moral question of slavery.
Lincoln’s later words and actions, from the Emancipation Proclamation to the Gettysburg Address, changed this. But the Constitution for decades permitted the horrors of slavery: physical torture, separated families, and, of course, the uncompensated labor at the heart of the enterprise.
One of the examples we didn’t address in our earlier piece is one that got a lot of attention a few weeks ago: Andrew Jackson’s supposed defiance of the Supreme Court that led to the removal of Native Americans from their homes in the southeastern part of the country. Thousands died in the forced march westward.
It might make a neat story to say that this was a violation of court order instructing Jackson to do otherwise. But there’s no actual evidence that he ever said the famous line, “John Marshall has made his decision, now let him enforce it.” More importantly, the Court was ruling on whether the federal government or the states had the right to control policy toward Native Americans. Part of this question was whether tribes would be treated as sovereign nations. But either way, it wasn’t like either state or federal policy was especially kind to this group of people. And a lot of suffering came as a result.
The Constitution has changed a lot since those days, through amendments and new interpretations. But many aspects of the political order allow disparity and outright violence to persist. The 14th Amendment guarantees equal protection of the law, and nondiscrimination statutes are on the books at state, local, and federal levels. Yet none of these can be effective without enforcement, which can be limited by practical issues and by politics.
In Ta-Nehisi Coates’s award-winning 2016 book Between the World and Me, Coates at one point seeks to explain police violence against African Americans by saying, “The problem with the police is not that they are fascist pigs but that our country is ruled by majoritarian pigs.” That is, the institutions in place give extraordinary power to the majority to deprive a minority of its power or even, on occasion, its life, without running afoul of its core documents. The Bill of Rights is supposed to prevent that, but there’s no guarantee it will.
As we consider our current political situation, it’s worth remembering that many of our fellow citizens have been dealing with a constitutional crisis their entire lives. Our Constitution excels at keeping the nation stable, but it has a decidedly mixed record on equality and justice for all.