Crises of Authority

Abstract

Constitutional scholars have long observed that the term “constitutional crisis” is overused. Pundits and scholars routinely use it to describe constitutional developments that they view as normatively undesirable. But doing so may hurt our ability to recognize them. We use a comparative and historical perspective to call attention to the worst-case scenario of constitutional breakdown. This scenario, which we will refer to as a “constitutional crisis of authority,” is defined by the presence of competing claims to legitimate political or legal authority in a single office—such as the existence of two presidents or two apex courts. Despite their gravity, such episodes of competing authority are not generally the focus of the U.S. literature on constitutional crises, presumably because the federal constitutional system has rarely experienced them. In addition, many of the scenarios that US scholars do describe as crises turn out, upon comparative and/or historical analysis, to be relatively common, both abroad and within the United States. These so-called “constitutional crises” include violations of constitutional rules and norms, the failure of poorly designed provisions to settle legal disputes, and even the failure of constitutional systems to address large problems. All of these are, we argue, less threatening to the survival of a constitutional system than crises of authority.