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Is the U.S. on the verge of a constitutional crisis?

Written by Jamauri Bowles

The United States is about to enter a pivotal period in its history. The 2024 presidential election is less than 12 months away, and the American public will have another opportunity to vote and determine who will be the new U.S. president.

Given the numerous voices and the controversies that surrounded the legitimacy of tallied votes in the 2020 election, some are concerned about the possibility of a constitutional crisis taking place in the U.S.

This concern was made evident  in a November 10, 2023 media briefing held by Ethnic Media Services. The media briefing featured three guest speakers who are experts in law and political science. They discussed what makes up a constitutional crisis, how to understand its signs and how to determine if the U.S. is sliding into such a crisis.

One of the guests, Seth Masket, who is a professor of political science and the director of the Center on American Politics at the University of Denver, listed four types of constitutional crises that could develop in the U.S.: first, the U.S. Constitution does not say what to do; second, where the Constitution is unclear about the government; third, when the  country’s institutions fail and fourth, where the Constitution says what to do, but doing so is not “politically feasible.”

Masket said the non-politically feasible crisis of telling others what to do is “probably the most relevant today [and] impeachment might be a good example of this.”

Gloria J. Browne-Marshall, a professor of Constitutional Law at John Jay College of Criminal Justice (CUNY), added another example: when the Supreme Court speaks, but one or both of the branches “refuse to follow the dictates of the Court.”

Aziz Z. Huq, a law professor at the University of Chicago Law School, looked at their examples as gaps or conflicts over constitutional meaning or implementation. For him, these gaps or conflicts do not necessarily count as crises. He stated that “we ought to understand crisis by thinking about what the purposes of the Constitution are. And if you think that the purpose is to install a national democracy, what counts as a crisis is when that purpose, democratic self-government, goes off the rails.”

The fact that the U.S. Constitution is short and vague means that it can give rise to different interpretations. Masket pointed out that there are very few restrictions on who can serve as president of the United States. For example, there are no restrictions to prohibit felons or someone currently in prison from serving. The 14th Amendment prohibits people involved in an insurrection against the United States from serving in office. There are ongoing court cases to determine whether Donald Trump should be allowed on the ballot due to his role in the 2021 insurrection.

“If one can pay the money and meet the basic criteria that’s set out, then one can run for president of the United States,” added Browne-Marshall.

Browne-Marshall also highlighted the changing demographic, noting that the majority of residents will be people of color by the year 2045, based on the U.S. Census. The people who are getting power, particularly those who are white supremacists, are getting power “because of the opening up of what was before: racial segregation, sexism, … xenophobia and everything else that was taking place, and the ability to stop the caps on immigration that had lessened the number of people of color from particular countries and kept it very high for European countries.”

“And that’s also a pattern in this country: the nativism is one that’s been going on since the 1800's when this country was made artificially white,” Browne-Marshall said. “It was not made in a natural way. It’s been an unnaturally created country and it’s unnaturally maintained to have a white majority. … All of these different systems, economic, political and otherwise, are put in play in order to maintain [the status quo].”

When it comes to signs of a decline in democracy, Masket said that at a certain point, “a functional democracy is dependent on a party being willing to lose and being able to accept it.” Any potential veto threats, which he called a major concern for the upcoming election, reflect “an area where we have seen some significant democratic erosion in the United States over the last decade.”

Huq added that “it is not unreasonable to be concerned that the United States might be moving into a period in which it’s not simply that certain voices are marginalized, but (it’s) the failure to maintain a system of competitive elections. … The way in which that gets lost is through both law and through violence … I would anticipate that the cost of that violence would once again fall upon communities and individuals who are historically marginalized and vulnerable.”

The conversation around constitutional crises and a decline in American democracy raises intrigue and puts a lot of attention on how next year’s election will unfold, while pointing out flaws in how the country operates.

“It’s clearly a mistake to think our democracy is perfect or anywhere near perfect in the United States,” Huq said. “There are many, many problems. Many kinds of exclusions, and limitations and distortions that are, I think, indefensible on any plausible view of what a democracy should look like.”

Jamauri Bowles is an East Palo Alto Today writer/contributor.

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