The Era of Constitutional Rot

One phrase I didn’t hear mentioned in the media sphere during the recent government shutdown was “Constitutional Crisis.” An estimated 800,000 federal employees went unpaid, and those deemed essential were compelled to work without pay whilst being unable to collect unemployment benefits. Federal unions raised Fair Labor Standards Act in violations in the courts and there was much discussion about invoking the 13th Amendment’s prohibition on slavery and involuntary servitude. The courts upon initial review, however, declined to issue orders against the government.

Other media sources highlighted that the courts themselves would have been unable to sustain operations after January should the shutdown have remained. Essentially, continued inaction of two branches in performing their functions would have caused the third branch to not be able to meet its functions.

Also notable is that fact that whilst this was having detrimental effects on these 800,000 federal employees, the people at the top of the house continued to get paid—Judges, Members of Congress, and the President, whose pay was specifically protected by the wording of the Constitution.

Other OECD democracies have similar times of friction in budget negotiations, but none compel their civil servants to work without pay. Many governments operating under the Westminster System face the prospect of snap elections during a significant budget deadlock, giving the electorate the power to give the ultimate vote of confidence on the issue of the day. Absent of them breaking any laws, there is no such recall mechanism for Congress or the President. The electorate tends to have amnesia on these issues as well, as I don’t recall any previous federal shutdowns being raised as campaign issues come election season.

It’s hard to say any of this gridlock and unfairness rose to the level of a Constitutional crisis, where government wilfully violated laws or the Constitution. The shutdown occurred primarily because the legislative and executive branches were able to check each other and were entrenched in their position with little incentive to compromise. The optics of the resulting fallout may be best described as Constitutional Rot, a term coined by Professor John Finn of Wesleyan University.

Finn defines this rot as occurring “when faith in the key commitments of the Constitution gradually erode, even when the legal structures remain in place… when decision-makers abide by the empty text of the Constitution without fidelity to its underlying principles… when all this takes place and the public either doesn’t realize—or doesn’t care.”