We the People: The Constitution spells out how the government works. Is it in crisis?

In the We the People series, The Spokesman-Review examines a question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What founding document was written in 1787?

The answer is “the U.S. Constitution,” which replaced the Articles of Confederation that governed the new nation during and shortly after the American Revolution – although not very successfully.

Leaders from the new states gathered in Philadelphia in 1787 to amend the articles, but instead threw them out and drafted a new plan, the U.S. Constitution, of which the first three words “We the People” are the name of this series and a catch phrase used by activists of all political persuasions ever since.

The Constitution describes the duties and obligations of the three branches of federal government – legislative, executive and judicial – and the rights of the federal government and the states. Since its adoption in 1788, the Constitution has been amended 27 times to spell out certain rights, change some of the original provisions or prohibit certain activity.

If you hear a reference to the Constitution these days, it may be in the phrase “constitutional crisis” when describing things like a presidential order to close a federal department or arresting and deporting noncitizens without judicial process.

While the phrase might be invoked whenever a member of Congress from one party disagrees with action taken by the president of another party, legal and political experts say true constitutional crises are rare.

A disagreement on what the Constitution says isn’t a crisis, said Cornell Clayton, director of Washington State University’s Thomas S. Foley Institute for Public Policy and Public Service. The framers of the Constitution expected there would be tension between the branches or between the federal government and the states. The courts are set up to settle some disputes.

Sometimes a crisis arises when the Constitution doesn’t answer a dispute between those parties, Clayton said. In 1861, the question it couldn’t answer was can a state secede?

Southern states said yes, President Lincoln and the federal government said no. The Civil War was the result of a constitutional crisis, said Hugh Spitzer, who teaches constitutional law at the University of Washington.

Seceding wasn’t unprecedented at that point. In 1776, the 13 colonies said they had the right to secede from Great Britain, which said that was illegal, Spitzer said. That secession became legal when the treaty was signed and ratified that ended the American Revolution.

This time the question was settled the same way – with a war – but with a different answer.

“After the Civil War, the Supreme Court ruled the United States was ‘an indestructible union composed of indestructible states,’ ” Spitzer said.

A dispute between the branches of government can become a crisis when one side that loses prompts a major change in the government, Clayton said.

In the 1930s, the U.S. Supreme Court overturned some of President Franklin Roosevelt’s New Deal programs to combat the Great Depression. Roosevelt announced plans to expand the court, which would give him more appointments for judges who could overturn those close decisions. Adding judges would require the approval of Congress, which was controlled by FDR’s fellow Democrats. But even some of them balked.

That crisis was averted when many of the conservative justices who had voted against the New Deal programs retired, allowing Roosevelt to appoint replacements through the normal process.

Lincoln also found a way around a potential constitutional crisis during the Civil War, Spitzer said. After he suspended the writ of habeas corpus, which allows judges to release people from jail if they aren’t being legally detained, an alleged Confederate sympathizer named Roger Merryman was arrested by the Army and held without a warrant. Merryman filed for a writ of habeas corpus with Chief Justice Roger Taney to be freed. Taney ruled that only Congress, not the president, can suspend habeas corpus and ordered Merryman released but noted he did not have the power to do it himself. The Army refused, citing Lincoln’s order, and Merryman stayed confined in an Army fort.

Lincoln eventually went to Congress and got the power to suspend habeas corpus retroactively.

Chief Justice John Marshall used a potential constitutional crisis to secure the court’s authority. When Thomas Jefferson became president in 1801, his secretary of state, James Madison, refused to allow William Marbury to take a position to which he’d been appointed by previous President John Adams. Marbury asked Marshall for a court order forcing Madison to give him the commission.

Marshall knew if he ruled in Marbury’s favor, Madison and Jefferson could ignore the order and he’d have no way to enforce it, Spitzer said. Instead he ruled that the Supreme Court has the authority to interpret the Constitution but didn’t have the jurisdiction over this case, so Marbury would have to seek relief somewhere else. In agreeing with the ruling that said Marbury didn’t get the position, Jefferson had to accept the ruling that the court is the arbiter of the constitutional disputes.

But courts can be at a disadvantage when faced with a constitutional crisis. Congress has the power of the purse and the president has the power of the military and law enforcement within the executive branch. When Chief Justice Marshall issued a ruling that President Andrew Jackson didn’t like that could block the removal of Native Americans from Georgia, Jackson supposedly said “John Marshall has made his decision; now let him enforce it.” Even if Jackson didn’t say that, it sums up the court’s disadvantage.

The removal continued and the court couldn’t stop it.

In the 1950s, the U.S. Supreme Court overturned a previous decision that allowed schools to segregate students by race and ordered the practice to end. When some Southern states refused, the court didn’t have the power to enforce its order. But President Dwight Eisenhower did, and he sent troops to states that refused to protect Black students who were being sent to previously all-white schools.

President Donald Trump’s expressed plans to close the Department of Education could be constitutional if he goes to Congress and gets the authority to do that, Spitzer said. Congress created the department and provides its funding. It could vote to revoke the former and cancel the latter.

But if Congress refuses or takes so long that Trump gets frustrated and orders it closed on his own, that could prompt a constitutional crisis.

A constitutional crisis occurs whenever the separation of powers that founding document sets out is no longer being respected, Gonzaga University Law professor Erica Goldberg said.

“I think every president has been accused of violating the Constitution,” said Goldberg, who teaches courses on the First Amendment and constitutional protections of criminal practice. “Any time we’ve had a very strong executive, we potentially had a constitutional crisis, and sometimes people were justified in saying it.”

Some of Trump’s actions, such as having some immigrants rounded up and sent to a prison in El Salvador without due process and not following a court order to bring them back, are on the verge of a constitutional crisis, she said. But public pressure or further court orders could correct that through the appeals process.

“I want to reserve the term crisis to when there’s really been an erosion of the process,” Goldberg said. “My hope is the American people do not have a tolerance for a flat defiance of judicial order … that the American public still has its principles.”