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What is a constitutional crisis?
With Trump waiting in the wings, could we
be heading toward one?

“This is one of those essentially contested concepts without a fixed definition,” says Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court.

A photo of the Capitol with yellow caution tape outside of it.
From the ongoing dispute at the southern border, to the prospect of a second Trump presidency, what is a constitutional crisis? AP Photo By Tom Williams

From the dispute at the southern border between Texas officials and the Biden administration, to the prospect of a second Donald Trump presidency, the phrase constitutional crisis has found its way into many headlines lately.

While modern crises pose dangers that are clearly defined, others are subject to interpretation, such as what is meant when reporters casually invoke the failure of the institutions of government to keep the wheels of democracy greased. Rolling Stone did so earlier this year, declaring with ominous certainty, in anticipation of Trump’s clash with state and federal prosecutors: “America is facing its greatest constitutional crisis since the Civil War.”

“This is one of those essentially contested concepts without a fixed definition,” says Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court.

Political officials and commentators frequently warned of a constitutional crisis during the Trump years — first, in response to some of his policies; then throughout congressional impeachments hearings; and, finally, when the former president allegedly mounted a campaign to overturn the results of the 2020 election. The term has re-entered public discourse as Trump, who is the presumptive Republican nominee for president, faces a slew of state and federal charges.

Northeastern legal experts say that, though real-world examples are often contested, the concept of 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 society. 

“In general, it relates to an inability of our governmental institutions to resolve problems in a legal or democratic way within the constitutional system,” Urman says.

Headshot of Jeremy Paul (left) and Daniel Urman (right).
Northeastern University Professor of Law Jeremy Paul, left, and Daniel Urman, director of hybrid and online programs and the law and public policy minor, talk constitutional crises. Photo by Alyssa Stone/Northeastern University and Matthew Modoono/Northeastern University

Types of crises

The U.S. Constitution is supposed to provide a framework for resolving disputes through doctrines such as the separation of powers. A constitutional crisis occurs when the system of “checks and balances” breaks down without clear recourse, and the issue at hand then “spills over,” rendering the institutions incapable of resolving the dispute, Urman says. Scholars, pointing to events throughout history, have delineated several categories of constitutional crises.

When President William Henry Harrison died just one month into his tenure in 1841, a constitutional crisis ensued over the exact procedure for installing his successor. It wasn’t until 1967, with the ratification of the 25th Amendment, that a process was put in place to clarify what had previously been constitutionally ambiguous. 

Constitutional vagueness can lead to one kind of crisis. Another is when the Constitution offers solutions to a problem, but they can’t be implemented because they are politically infeasible. This was the case during the 2000 presidential election, when a dispute over vote tallies in Florida was kicked up to the Supreme Court despite constitutional remedies. (While the authority to determine a winning candidate rests with the House of Representatives in the case of a dispute, scholars note that constitutional rules governing presidential elections still must be “interpreted and supplemented.”)

The high court ultimately handed the presidency to George W. Bush, ending a possible crisis (scholars have debated whether Bush v. Gore constituted an actual constitutional crisis) that left a stain on the democratic process.

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