Guest Post: Not a Constitutional Crisis!

Here is the second winner of the Blog-a-Fault-Line Contest—Alexander Kosyakov.

Sanford and Cynthia Levinson’s blog post on “What is a Constitutional Crisis, Anyway?” presented many compelling examples of what a constitutional crisis may look like in the future. The uses of Shay’s Rebellion and the Civil War to exhibit past struggles in the Constitution were framed incorrectly with regards to historical context and how that related to a Constitution.

Shay’s Rebellion was not a true constitutional crisis because the Articles of Confederation were never a true constitution. As Professor Akhil Reed Amar of Yale University writes in America’s Constitution, the Articles were based heavily on the Swiss Confederacy—an alliance between independent Swiss states that allowed them to share their military and defensive capabilities as Europe was ravaged with wars from the late-Renaissance period to the 1700s. Likewise, the American confederation was built for the coordination of state military resources, making it extremely effective in fighting the Revolutionary War.

When Alexander Hamilton referred to the confederation with “imbecility”, he did so in The Federalist No. 15 with, “The imbecility of our Government even forbids them [other governments] to treat with us: Our ambassadors abroad are the mere pageants of mimic sovereignty.” He was frustrated by the fact that the United States was not a singular country, but a territory possessing many sovereign states that acted on their own. In many aspects, today’s European Union is a stronger entity than the confederation government. A transition to the Constitution that we have now was really only natural. Most Anti-Federalists were actually not against a new, untried government but the elite being able to take control of the new government.

When the Articles of Confederation are considered in this light, it actually becomes easier to understand what an American response would look like in the event of a constitutional crisis. In fact, it’s also easier to imagine what the actual constitutional crisis would look like as well. Social contract theory, as championed by John Locke and other Enlightenment philosophers, entails a government’s subjects delegating certain rights to the government in exchange for the protection of the remaining rights. For a social contract to work in the most democratic and civil manner, in which the government finds no need to be abusive of the people while the people make positive contributions to the society, the government has to have legitimacy. The people have to be approving of it. The people were not satisfied with the British government, and so the British government became impotent in the 1770s.

Our government at the moment has lost legitimacy for a major part of the population. However, constitutional faith remains strong. But in the future, if there is a catastrophic natural disaster or war, the government will lose legitimacy, and the people may form something resembling the Articles of Confederation to deal with the issue, for it would be a more targeted government.

Such a notion may immediately conjure arguments involving the Civil War as an example that disproves this. However, the Civil War would by this definition not be considered a constitutional crisis. This is because a constitutional crisis would affect all people, while in 1861 the potential for slavery being abolished would economically and socially affect people on a fundamental level in Southern states of the country. This presents one final, interesting idea: a constitutional crisis would affect us all. And it is likely that all of us would act just like our forefathers.

Alexander Kosyakov is incoming Student Body President of Greenwich High School in Greenwich, Connecticut.