13 Pages Posted: 30 Jun 2017
Date Written: May 15, 2017
The first hundred days of Donald Trump's presidency led many commentators to ask whether the United States was in the midst of a constitutional crisis. Drawing on previous work written with Sanford Levinson, this essay explains why that is not the case. Trump's demagogic rise to power, however, suggests that a different phenomenon is at work: constitutional rot.
When politicians disregard norms of fair political competition, undermine the public's trust in government, stroke polarization, encourage mutual fear and hatred of fellow citizens, and repeatedly overreach to rig the political system in their favor, they cause the system of democratic and republican constitutionalism to decay. The decay of norms that maintain a democratic republic is the phenomenon of constitutional rot. Many claims about "constitutional crisis" during Trump's presidency reflect a growing recognition of the constitutional rot in our nation's political institutions.
The essay explains the differences between constitutional crisis and constitutional rot and how the two are connected. Whereas constitutional crises normally occur over brief periods of time, constitutional rot is often a long and slow process of change and debilitation, which may be the work of many hands over many years.
The election of a demagogue like Trump is evidence that our institutions have seriously decayed, and judging by his presidential campaign and his first hundred days in office, Trump promises to accelerate the corruption. The constitutional system in the United States may well be able to survive even Donald Trump's misadventures. But Trump's rise to power, his conduct of the presidency, and the inability (or unwillingness) of members of Congress to stop him, are signs that all is not well in American constitutional democracy. At some point, if we put too much weight on our democratic institutions, they will snap. There is currently no actual constitutional crisis in the United States. But if constitutional rot continues, we are living on borrowed time.
Keywords: Constitutional Crisis, Constitutional Rot, Republicanism, Corruption, Norms, Donald Trump
JEL Classification: K10
Suggested Citation: Suggested Citation
Balkin, Jack M., Constitutional Rot and Constitutional Crisis (May 15, 2017). Maryland Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2993320