Opinion | Where Are Trump and Musk Taking Us?

The question of the day is whether the United States is embroiled in a constitutional crisis.

Consider the circumstances. Congress has essentially surrendered its power of the purse to an unelected co-president who has seized control of much of the federal bureaucracy. The actual president has asserted a unilateral executive authority so powerful and far-reaching that it threatens the republican character of the American political system. And that same president has taken actions — such as an attempt to unravel birthright citizenship — that blatantly and flagrantly violate the Constitution.

But as critics of the “crisis” view note, for all of his lawbreaking, transgression and overreach, the president has yet to take the steps that would clearly mark a constitutional crisis — openly defying a lower court order or, more significantly, a judgment of the Supreme Court.

One thing the language of crisis captures, however, is the degree to which the American political system is under a tremendous amount of stress. And to the extent that this stress threatens the integrity of the constitutional order, it is because the American system is, and has been, in a profound state of disrepair. If we are in or approaching a constitutional crisis, it has been a long time coming.

In 2009, the legal scholars Jack M. Balkin and Sanford Levinson published an article on constitutional crises titled, aptly enough, “Constitutional Crises.”

The aim of their argument was to distinguish ordinary (or even extraordinary) political conflict from a breakdown in the operation of the constitutional system itself.

“When constitutional design functions properly — even if people strongly disagree with and threaten each other — there is no crisis,” Balkin and Levinson explain. “On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of ‘crisis.’ ”

A crisis occurs, to put it a little differently, when a constitution fails to achieve its primary task, which is to channel political disagreement into ordinary politics. It’s when disagreement begins to break down into violence — into anarchy or civil war — that you have a constitutional crisis.

From here, Balkin and Levinson offer up a typology of democratic constitutional crises (primarily in the United States, although this extends to other constitutional democracies as well). There is the “type one” crisis in which political leaders have publicly claimed “the right to suspend features of the Constitution in order to preserve the overall social order and to meet the exigencies of the moment.” In this kind of crisis, a president has essentially claimed the sovereign power to declare a state of exception acting, in Locke’s words, “without the prescription of the Law, and sometimes even against it.”

No president has ever claimed the right to act outside the Constitution. Instead, those presidents who have sought to expand their power tend to frame their actions as the necessary exercise of legitimate authority. Prominent examples include Abraham Lincoln at the start of the Civil War or, more recently, George W. Bush after the Sept. 11 attacks.

In the “type two” crisis, political leaders do not abandon the Constitution as much as refuse to break with a failing constitutional order. “If type one crises feature actors who publicly depart from fidelity to the Constitution,” Balkin and Levinson write, “type two crises arise from excess fidelity, where political actors adhere to what they perceive to be their constitutional duties even though the heavens fall.”

If there is a paradigmatic example of this crisis in American history, it can be found in the secession crisis of 1860 to early 1861, when President James Buchanan stood by as Southern secessionists seized federal armories and prepared for war.

The third and final category of constitutional crisis that Balkin and Levinson discuss involves a situation in which “the relevant actors all proclaim their constitutional fidelity” but “disagree about what the Constitution requires and about who holds the appropriate degree of power.” What distinguishes this from ordinary disagreements is the willingness to go outside of normal politics to resolve the conflict, up to and including the use of violence.

You can see this type of crisis in the struggle over Reconstruction, when recalcitrant Southern whites took up arms to challenge, and eventually overthrow, the postwar biracial political order.

“Constitutional Crises” was something of an incongruous argument to be making given the rise of Barack Obama, whose presidency opened with a sense of promise and optimism about the future. The mood and circumstances were a little more appropriate eight years later when, at the start of the first Trump administration, Balkin followed up on this exploration of constitutional crises with an article on what he evocatively termed “constitutional rot.”

If a constitutional crisis is an acute event — brought on by external shock or internal breakdown — then constitutional rot is something like a chronic illness. It is, Balkin writes, “the degradation of constitutional norms that may operate over a long period of time.”

You may, at this late date, be tired of talking about norms, but it is true that constitutional democracies depend on them for their survival. A successful republic rests on well-functioning institutions that structure ambition and the acquisition of political power. It demands a certain amount of forbearance from both political leaders and ordinary citizens when it comes to the use of that power. Politics cannot be a winner-take-all game.

Above all, constitutional democracy requires a broad commitment to the public good, or what we might describe as civic virtue — a particular obsession of America’s revolutionary generation. This includes ordinary people, who have a responsibility to keep themselves informed and engaged, as well as elected officials, who are entrusted with the public good and thus the obligation to further the common interest rather than the most narrow concerns of themselves or their allies. Even our system, designed to harness ambition so that the “interest of the man” is “connected with the constitutional rights of the place,” depends on a certain amount of selflessness from those who choose public service.

Constitutional rot is when all of this begins to deteriorate. It’s when government officials reject the public good in favor of the private interests of their supporters and financial backers; when institutions fail to address public problems; when political actors embrace a nihilistic ethos of winning regardless of the damage it might do to the overall health of the political system; and when politicians reject any and all limits on their use of power and try to insulate themselves from accountability, democratic or otherwise.

Each dynamic eats at the foundation of constitutional government. And like the rot that afflicts the sill plate of an old home, it will undermine the entire structure if left to grow and fester.

If we use the typology Balkin and Levinson outline, then it is a little hard to say that the United States is experiencing a constitutional crisis. For as much as Donald Trump has centered his second term on a radical assertion of executive power, he has not yet claimed to be above or beyond the Constitution. His view, in fact, is that he has “an Article 2 where I have the right to do whatever I want as president.” (This is wrong, of course, but it means something, even still, that the White House is trying to ground its claims within the existing political order.)

The Constitution also isn’t, at this moment, faltering on the shoals of a political, social or economic crisis, and our political leaders have not turned to extraconstitutional methods to try to resolve their conflicts.

Reasonable people can disagree about whether the current circumstances constitute a constitutional crisis. But it is extremely difficult to deny the extent to which the constitutional order is rotting from the inside out.

You can see it in the wide and widening gap between what the public wants from its government and what that government is able to deliver. You can see it in the vulgar influence peddling and outright looting that passes for normal behavior in Washington. You can see it in the catastrophic weakness of both political parties, whether it’s a Republican Party so hollowed out by extremism and in thrall to the ultrarich that it was easy pickings for a populist demagogue and his wealthy backers, or a Democratic Party whose feckless leadership class is more concerned with securing its personal influence than building the kind of organization that can construct and mobilize popular majorities.

You can see it in the failure of the American political class to deal with the Jan. 6 attack on the Capitol — a system-level threat to constitutional government whose ringleader was allowed to run, a third time, for president — and you can see it in that president’s easy seizure of the power of purse. The fact that Elon Musk, a de facto prime minister acting with the authority of the president, can cancel federal programs without a peep from the majority in Congress is a sign of constitutional rot. The fact that Republicans in Congress would rather beg Musk for a reprieve than assert the power of their institution is also a sign of constitutional rot setting in even further. And the fact that so many of our institutions are treating Trump’s executive decrees as laws — bending to and indulging his whims as if he is sovereign, as if he is a king and not a president — is a sign of constitutional rot.

Constitutional rot can lead to constitutional crisis. At the same time, not every house that rots at its foundation falls apart. Some become inhabitable even as they appear otherwise. So it goes for a republic. We may retain the appearance of a constitutional democracy even as the rot corrodes the freedoms and values that give that term its weight and meaning. We’ve already reached the stage, after all, where the ruling regime attempts to deport one of its most vocal and vulnerable critics.

With a house, there is only one thing to do about rot. Tear it up. Remove it. And replace it with something new. If our political system — if our constitutional order — is too rotted through to secure freedom, equality and the blessings of liberty, then perhaps it’s time to rethink what it is we want out of American democracy.

Assuming, of course, that we can keep it intact.