There have been crisis such as the 1876 tied election, but they still could be solved because Congress has the power to certify the electoral college votes and reject them. Has there been any constitutional crisis where there was no constitutional way to solve it?
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27The most obvious one is the U.S. Civil War and the events leading up to it.– ohwilleke ♦Commented Mar 16, 2021 at 3:26
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5I am not sure how a tied election is a constitutional crises when the constitution has provisions for how to handle it.– Joe WCommented Mar 16, 2021 at 12:28
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3@JoeW Well those provisions can fail, at least in principle, and sometimes those have no/poor backups. An early election had to be decided by the House, as per the Constitution. They voted dozens of times before they eventually selected a "winner". But in principle they could have simply never come to an agreement. What's the backup, then? Presidential line of succession as prescribed by statute per the constitution, I suppose, but that was poorly dealt with for much of our early history, with situations where there would be no valid successor arising.– zibadawa timmyCommented Mar 16, 2021 at 17:02
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1@ohwilleke I think that should be the answer. Given the high quality of your answers, I also think you should post it as such ;)– RelaxedCommented Mar 16, 2021 at 17:29
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1@JoeW The Constitution says "The Person having the greatest Number of Votes shall be the President" and " if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse". The Constitution does not address the situation where no one can tell if anyone has a majority, because there are enough disputed votes that it could be either one. Nor does the Constitution say what to do if there are multiple different totals submitted from a single state - it just says that they should be counted. 1876 had both of those.– BobsonCommented Mar 18, 2021 at 21:37
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1 Answer
What counts as a constitutional crisis can be a bit of a no true Scotsman fallacy. There hasn't (and likely won't) be a crisis that just causes the United States or the rule of law to just not exist. There are a lot of undefined areas in hypothetical scenarios, but they are really only undefined because they are only hypothetical. Passing a law or a supreme court ruling would be the likely response to any of these scenarios becoming real.
Two presidents have ignored supreme court decisions, which likely cause a bit of a crisis at the time. The first was Andrew Jackson allowing settlers on Native American land, and the second was Abraham Lincoln suspending habeas corpus. Several other presidents have arguably ignored rules or laws in a malicious compliance sort of way. A president not following an order creates a sort of crisis where the only remedy is impeachment.
Arguably the practice of Judicial review established in Marbury v. Madison itself was formed by stitching arguments from several places together to say the constitution allowed such power. This was a significant power grab by the Supreme Court for themselves and lesser courts. This could in a way be considered a more or less constant constitutional crisis for the last 200 years, or it could just be the thing that has avoided any real crisis.
Prohibition was more of a lesson learned than a full on crisis, but arguably shows the dangers of creating laws as amendments. The need to create an amendment to repeal the earlier amendment creates a bit of a crisis where there is no support for prohibition but it's still law for a brief period.
The civil war is considered a constitutional crisis, by some, but it really wasn't a big deal from a constitutional law perspective. It was an existential crisis for the the United States though. The constitutional crisis part was related to the reconstruction amendments. Granting personhood to slaves created a whole mess of rights that these amendments were created to address. The extremely broad writing of the fourteenth amendment was to essentially make it impossible to deny that former slaves were American, and therefore avoid giving them voting rights or any government aid.
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1Prohibition didn't ban alcohol. It moved the regulation of alcohol from a power of the state to the power of the federal government. A separated law, the Volstead Act, had to be implemented to enforce prohibition.– hszmvCommented May 3, 2023 at 17:52
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1There were constitutional issues around the Civil War, such as whether states had the right to secede, and issues around the North's conduct of the war, but you'd be hard pushed to argue that the Confederacy's actions were constitutionally permitted. Although things like the 1993 Russian constitutional crisis were legally simple (Yeltsin was in the wrong at least legally) but still viewed as constitutional crises.– Stuart FCommented May 4, 2023 at 11:47