Are we in a constitutional crisis (already)?

Is there a constitutional crisis? My view is no. But other people do believe there is a constitutional crisis, and if enough people agree with them, there will be. So it is not too soon to understand what these views are. I see two: a liberal legal view and a Trumpian view. I present them as sympathetically as I can while trying not to overstate them. To be clear, I agree with neither of them.

Liberal Legal

“Trump’s character and actions make clear that he does not respect our constitutional system. He has railed against, or shown serious disrespect for, many of our most important institutions and principles—the press, the electoral system, and the principle of political competition. He has expressed admiration for dictators while criticizing liberal democracies and the great accomplishments of liberal internationalism. In his latest actions, he has shown himself contemptuous of the judiciary, of principles of due process, and of basic norms of legality and fairness. True, he has not yet overtly broken any laws, or committed impeachable offenses. But our constitutional system vests significant discretion in the presidency; Trump’s intentions are clear; and we cannot afford to wait for him to commit serious abuses.”


“The United States faces a great civilizational threat from immigration by people who do not share basic American values. We can see our future in countries like France, which have cracked down on civil liberties because the public cannot otherwise be protected from alienated, angry Muslims who reject liberal principles. While our country has survived waves of immigration before, Islamic extremism poses an existential threat. Meanwhile, uncontrolled immigration from the south also has damaged national solidarity and America’s protestant heritage. A series of feckless governments have winked at these developments—promising to enforce the law while failing to—and now liberals claim that necessary measures to counter these trends are politically impossible because they violate constitutional principles—of recent vintage, largely invented by elites of both parties who control the levers of power and have disregarded the interests and well-being of ordinary Americans for decades.”

In the clash over the president’s immigration order, one sees both views. Where liberals see a president who breaks fundamental constitutional norms in order to advance invidious goals, Trumpians believe that their policy agenda cannot get a fair shake, despite the electoral victory, because liberals control the institutions and have invented the constitutional norms. And the issue has been joined with startlingly clarity in the following question: can Trump keep Muslims out of the country for cultural reasons? Trumpians say yes; liberals say no. Liberals are correct to see national security as a pretext for the immigration ban, but are wrong to think that the constitutional question is therefore resolved, at least in the minds of the public.

The echo of the great battles of the New Deal—albeit a debate about culture rather than economics, and with a reactionary (in the narrow, original meaning of the word) rather than a liberal in the presidency—is unmistakable.