Penn State Law professor discusses what makes a constitutional crisis

July 02, 2018

UNIVERSITY PARK, Pa. — The term constitutional crisis is frequently thrown around by pundits who are concerned about the current administration in Washington D.C. But what does a crisis actually look like? And how close is the U.S. to having one?

Jud Mathews, Penn State Law associate professor of law and affiliate professor in the School of International Affairs, has spent his career studying the U.S. Constitution. He discussed what a constitutional crisis is and how close the U.S. is to one right now on the latest episode of the McCourtney Institute for Democracy’s Democracy Works podcast.

One helpful way to think about things, Mathews said, is to consider the Constitution like a road map that helps the government make decisions. Using this framework, a constitutional crisis occurs when the government ventures off of that road map, or stops using it as a guide.

“When there is a pretty clear constitutional answer to what we should do in a situation, but an important actor just decides to do something different, that’s a pretty clear constitutional crisis,” Mathews said. “For example, an incumbent loses an election and decides to stay in office.”

Has a crisis happened yet? Mathews doesn’t think so. He also cautions against using the term too much or too loosely.

“It’s the ‘boy who cried wolf’ problem,” he said. “If we label every serious instance of political turmoil a constitutional crisis, that licenses some pretty extreme responses and we become numb when the constitutional order really is in crisis.”

However, Mathews opined that constitutional norms — unwritten but generally accepted operating procedures — are in his estimation being eroded. If this erosion continues, it could lead to a full-blown crisis, according to Mathews.

Those norms include things like the power to pardon and the checks and balances set forth between the three branches of government. As someone who has made the Constitution his life’s work, Mathews is concerned about what he’s seeing in Washington.

Despite what may or may not happen in the White House, Mathews said there are many other people in the government who are dedicated to making sure a constitutional crisis does not occur.

“You don't have to be a lawyer to care about the constitution, Mathews said. "I'm hopeful that the government can continue to live up to some of these high standards of fidelity to the Constitution.”

To listen to the full interview with Mathews, visit democracyworkspodcast.com or subscribe in iTunes or Spotify.

  • Penn State Law professor Jud Mathews

    Associate Professor of Law Jud Mathews discusses what makes a constitutional crisis on the latest episode of the Democracy Works podcast.

    IMAGE: Penn State Law
Last Updated July 12, 2018