February 6, 2018 at 2:05 pm PST | by Jon Davidson
On the brink of a constitutional crisis?

Jon W. Davidson has been a leading LGBT legal rights advocate and constitutional scholar for more than 30 years. He recently stepped down as the national legal director of Lambda Legal. (Photo by Karen Ocamb)

Numerous politicians and commentators increasingly have been warning of a looming “constitutional crisis” in our nation. While there is little doubt that we are on the precipice of crises on many fronts (including international relations, civil rights, political integrity, and the environment), how close are we to a true “constitutional” crisis?

To answer that, one needs to understand what a constitutional crisis actually is.

The U.S. Constitution and its amendments establish the structure of our federal government, the powers and responsibilities of its parts, and the limits of federal, state, and local government authority. One reason our country has had as much stability as it historically has is that drafters of our Constitution created a flexible document that has been able to adapt to very different times than when it went into effect nearly 229 years ago. Another is that many interstices between constitutional provisions have been filled in with judicial interpretations and congressional and executive branch customs.

Perhaps most importantly, the Constitution established systems of separation of powers and checks and balances that reduce the risk of national crises, especially with the support of a strong media, effective nonprofit groups, and political leaders and an electorate that prize the values of peaceful debate, truth, and decency.

A constitutional crisis nevertheless can occur, however, when—notwithstanding these safeguards—fierce disagreements arise about whether certain government actions are constitutionally permissible or when the Constitution’s provisions and these ancillary supports prove inadequate to constrain the extremes of either tyranny or chaos.

Our nation has endured a number of constitutional crises, or near ones, in the past. For example, the Constitution doesn’t address whether states can leave the union, and we had to fight a civil war to establish that they cannot. Presidential assumption of unilateral emergency and war powers sometimes were checked by judicial orders or congressional enactments, but the failure of either to stop the internment of Japanese-Americans during World War II is a sobering reminder of the power of fear and propaganda to overwhelm constitutional justice, at great individual costs, for years on end. Had Richard Nixon refused to comply with the Supreme Court’s order to turn over White House tapes, a constitutional crisis about whether presidents are above the law certainly would have arisen.

Like the symbolic Doomsday Clock that recently was reset ahead by 30 seconds—to just two minutes before the midnight of apocalypse—numerous signs point to us having moved closer to a constitutional crisis than we’ve been in decades. Ongoing concerns about whether our current president has been engaged in obstruction of justice and may seek to fire Deputy Attorney General Rod Rosenstein or special counsel Robert Mueller to end the investigation of improper Russian influence on our last national election again raises the specter of a chief executive who seeks impunity from legal constraints or even investigations.

Complicity by congressional leaders like California Rep. Devin Nunes—combined with the tearing down of customary restraints like the filibuster, committee hearings on important legislation, and the “blue slip” policy that allowed senators to object to extreme judicial nominees—threaten the operation of longstanding checks on unilateral party power. Vituperative attacks by President Trump on the media (including proposals to subvert constitutional limitations on defamation lawsuits), science, intelligence agencies, political dissent by athletes, and even verifiable facts (like how many people watched the State of Union address) evidence an intent to tear down anything that might stand in the way of unquestioned adoration and authority. And continuing efforts to subvert fair elections through political gerrymandering, improper voter disenfranchisement, and the weakening of Voting Rights Act enforcement, imperil the nation’s history of self-correction when government leaders go too far.

Yet, there is reason not to despair. Attacks on women’s health care and indifference to Trump’s bragging about sexual harassment have led to unprecedentedly huge women’s marches, the #MeToo movement, and throngs of women seeking political office. Numerous state officials, and particularly state attorneys general, have stepped forward to challenge Trump administration moves menacing immigrants, religious minorities, the environment, and health care coverage. Our nation’s LGBT legal groups filed four lawsuits that have led to unanimous judicial condemnations of, and a halt on, Trump’s single-handed efforts to bar open military service by transgender individuals.

What will allow a constitutional crisis to ripen is indifference. Trump’s unending incendiary tweets and comments threaten not only distraction from the real perils we face but also “outrage fatigue” that may be being intentionally engendered to cause people to stop paying attention and give in to despondency rather than resistance. We have the power to avert a constitutional crisis by organizing, protesting, supporting progressive organizations and leaders, and voting.

To give up is to give in. Instead, each of us who can must speak up, contribute, and act. The stakes are too high to do otherwise.

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