Constitutional Crisis and Constitutional Riot

Jack M. Balkin

No one could accuse Donald Trump’s presidency of being boring. The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Because Donald Trump is very unpopular, and because he regularly does things that his opponents consider outrageous, his critics have begun to describe his actions as creating or precipitating a “constitutional crisis,” especially following his first executive order limiting entry into the United States, and again after his firing of FBI director James Comey.

In 2009, Sandy Levinson and I wrote an article about constitutional crises. We argued that the term is overused; people apply it to many situations that are worrisome but that are not really constitutional crises at all. In this Essay, I offer a brief explanation of the term and why it is so likely to be misused. I also introduce a second idea, “constitutional rot,” and explain how it relates to Levinson’s and my theory of constitutional crisis. Many claims of constitutional crisis about Trump’s presidency, I argue, reflect a growing recognition of the constitutional rot in our nation’s political institutions.