Constitutional Crisis FAQ

Are we in a constitutional crisis?

No, everyone’s still having too much fun. And the government is still humming along.

How do we know if we are having one?

Though the Constitution has no provision for explaining when we’ve reached a crisis regarding it, constitutional scholars say the chief criterion is widespread disagreement over the legitimacy of the presidency. In that case, the Civil War takes top prize in the constitutional crisis sweepstakes. There have been others with less bloody consequences. The presidential election of 1876 we’ve all been hearing so much about was one. Until 48 hours before the inauguration, the country didn’t know who the president would be. The legitimacy of the Electoral College electors from three southern states was so in doubt, each state sent two sets of votes to Washington. Congress finally set up a special commission to choose the president. It favored Republican Rutherford B. Hayes over popular vote winner, Democrat Samuel Tilden.

How could the current situation go from entertainment to constitutional crisis?

Rep. Tom DeLay, R-Texas, has a good idea. He’s circulating a memo indicating that Congress could refuse to accept the electoral votes of Florida if the state ends up giving Al Gore an electoral vote majority. Another possibility is that the Florida election could remain tied up in the courts by the time the state is required to have its electors chosen on Dec. 12. In that case, it is unclear whether the electors from the rest of the states could go ahead and vote without Florida, which would give the presidency to Al Gore, or if the election would be sent to the House of Representatives, which would choose George Bush. Two competing inaugurals would probably constitute a constitutional crisis.

What about the requirement of the 12th Amendment that electors from a given state cannot vote for a president and vice president who are both inhabitants of the same state as that set of electors. Could this provoke a constitutional crisis?

That’s just a totally absurd scenario, nothing like that could possibly happen, elections in this country don’t get derailed over ridiculous technicalities. … On the other hand, possibly. This little-noticed provision of the 12th Amendment, added in 1804, was designed to force electors to choose a national ticket and not have every state simply voting for a slate of favorite sons. It seems a silly vestige today, but it’s the law, and that’s why vice-presidential candidate Dick Cheney changed his residency from Texas back to Wyoming when governor of Texas George W. Bush selected him as a running mate. The question is, how do you define “inhabitant”? Some legal scholars say Cheney can legally call himself a Wyoming inhabitant. Others say there is plenty of case law–people have to meet fairly strict residency requirements in the case of estate taxes, for example–which puts a higher burden on being an inhabitant than Cheney has met. A lawsuit over this has already been filed by a private citizen living in (where else!) West Palm Beach. Scholars say such suits are unlikely to have standing. But it is possible if Bush wins the election, Democrats could try to challenge the legitimacy of the Texas electoral votes.

Lots of people are saying the issues at stake over how to count Florida votes are “political questions,” not yet constitutional ones. What’s a political question?

A question about the process of governing that the courts don’t want to mess around with. When the courts decide something is a political issue, they can send it back to the legislature or the executive branch to figure out.

Next questions?

Explainer thanks Sanford Levinson of the University of Texas School of Law and Akhil Amar of Yale Law School.