The Making of a Constitutional Crisis

On the Texas Battle for the Border and the Struggle for Sovereignty

In the waning days of January, Texas governor Greg Abbott invoked his state’s “constitutional authority to defend itself” in an ongoing dispute with the Biden Administration over control of a park on the United States-Mexico border.

Shelby Park in Eagle Pass, Texas, has become the epicenter of the nation’s so-called migrant crisis, which has seen more than 6 million migrant encounters on the southern border since Joe Biden took office three years ago. The 47-acre public park, which includes walking trails, baseball diamonds, and a golf course, borders the Rio Grande and is a major point of entry for migrants illegally crossing into the United States from Mexico. After weeks of wrangling between the State of Texas and the Department of Homeland Security, Texas officials finally sealed off the area from US Border Patrol and continued to install concertina wire amid protests from the White House and the US Supreme Court. Defending his actions in a recent statement, Governor Abbott declared:

“The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them… James Madison, Alexander Hamilton, and other visionaries who wrote the US Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats… For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary…”

The governor’s statement quickly circulated across social media, with more than 25 Republican governors voicing their support and commentators across the political divide predicting another “constitutional crisis.”

Depending on who you ask, the United States has survived no less than six constitutional crises during its 247-year history: the Nullification Crisis of 1832, the death of President William Henry Harrison, the Secession Crisis of 1860, the 1876 presidential election, the 1952 steel strike, and the Watergate Scandal — with each crisis testing the power, authority, and legitimacy of the central government to varying degrees. While shocking to some, Abbott’s claim that the Chief Executive has abandoned his constitutional duties and forced states to fill the vacuum is not unprecedented; the charge has echoed across American political discourse since the Declaration of Independence, when Thomas Jefferson proclaimed, “He has abdicated government here, by declaring us out of his protection and waging war against us…” Nor is Abbott’s appeal to the state’s “sovereign interest” in protecting its borders against invasion unusual. The relationship between sovereignty and self-preservation is deeply embedded in American constitutionalism, and if we return to the Declaration for a second time, we see that issues of immigration and naturalization are foundational and used to support the allegation that King George III had established an “absolute tyranny over [the] states.”

The Declaration of Independence was not a revolutionary document because it promulgated radical principles created out of whole cloth, it was a claim to legitimacy in preserving an existing state of affairs against a lawless authority, with a sovereign People as the lynchpin. We the People is the crucial link between the Declaration’s principles and the US Constitution’s physics. Only by subordinating government to a sovereign people could Jefferson justify the colonies’ final separation from Britain. This is the bedrock of American constitutionalism and vital to the US government’s claim to legitimacy. It is the perennial issue at the heart of every constitutional crisis in the nation’s 247-year history, including an ongoing struggle between Washington’s authority and legitimate challenges to that authority from the hinterlands. Indeed, the current dispute over the border is but the latest manifestation of a decades-long constitutional crisis that has been boiling since the 1930s. 

It can be difficult to comprehend this ongoing constitutional crisis, let alone trace its origins. Much of what we think we know about constitutional government and its underlying principles has been distorted, making the past largely inaccessible to us. But we can still detect the symptoms of the crisis. The disintegration of citizenship, elected officials’ shameless disregard for their constituents, the sectarian character of our federal bureaucracy, and widespread disorder in the shadow of unprecedented state control all point to a deeper disease. Most Americans cannot articulate in constitutional terms the source of such problems, and very few would blame the US Constitution itself. But their disillusionment and feelings of powerlessness are real, and not the result of a collective moral failing, as many professional observers insist.

Whether they can explain it or not, ordinary Americans sense that their way of life is slipping away, that a strange new civil religion has replaced the one they were born into, that their consent no longer undergirds the political system, and that the Constitution has been rendered toothless by a nameless, faceless, and, ultimately, incomprehensible power in Washington. There was no debate, no vote, and no notice given — they were never asked. Even as millions of foreigners enter the country illegally, overwhelming public services and subsisting entirely on the taxpayer dime, citizens who object have no recourse until November, when they can cast a single vote in an intensely managed nationwide election.

Is this the America of Washington, Adams, Jefferson, and Madison? How did we get here, and can anything be done?

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The word “revolution” is overused today and better describes popular music trends than protest movements, but Americans have a unique relationship to revolution — their founding documents and political vernacular are steeped in it, and passages from the Declaration of Independence still feature prominently in stump speeches. But owing so much to that first and greatest revolution has led many to underestimate the revolutionary quality of subsequent transformations. Those who adhere to the belief that the nation’s government and constitution have remained mostly intact over the years — handed down from one generation to the next in an unbroken tradition — tend to view adjustments both great and small as necessary reforms; rarely is revolution used when reform will do. But astute observers have always noted revolutionary chapters in our history, and not all of them cheerful. Former Soviet spy Whitaker Chambers, for example, offered a bleak assessment of one of the most celebrated episodes in American history since the Founding. In describing his clandestine activities during the 1930s in his memoir Witness, Chambers rejected the popular notion that Franklin Roosevelt’s New Deal was a reform movement, identifying it instead as a genuine revolution:

“The New Deal was only superficially a reform movement. I had to acknowledge the truth of what its more forthright protagonists, sometimes unwarily, sometimes defiantly, averred: the New Deal was a genuine revolution, whose deepest purpose was not simply reform within existing traditions, but a basic change in the social, and, above all, the power relationships within the nation. It was not a revolution by violence. It was a revolution by bookkeeping and lawmaking… This is the basic power shift of all the revolutions of our time. This shift was the revolution. It was only of incidental interest that the revolution was not complete, that it was made not by tanks and machine guns, but by acts of Congress and decisions of the Supreme Court, or that many of the revolutionists did not know what they were or denied it. But revolution is always an affair of force, whatever forms the force disguises itself in. Whether the revolutionists prefer to call themselves Fabians, who seek power by the inevitability of gradualism, or Bolsheviks, who seek power by the dictatorship of the proletariat, the struggle is for power.”

To further emphasize the point, Chambers recalls that the New Deal revolution was so profound and complete that concealed Communists working in government agencies were able to operate wholly undetected, not necessarily on account of a broader conspiracy within the Roosevelt Administration, but because, like communist subversives, progressive New Dealers were themselves revolutionists striving for revolutionary power; they could not distinguish between their common ends. The birth of the New Deal regime and the establishment of the administrative state was not sudden and conclusive but gradual and meandering. There was no decisive battle or foundational text to mark the revolution. Rather, as Chambers notes, it was a revolution in bookkeeping and lawmaking — a slow upending of the American constitutional order by beancounters, bookworms, and bureaucrats. The New Deal was the triumph of progressive intellectuals over the old-fashioned constitutionalism of prior generations — parochial men who did not understand science.

Progressives of the time were not secretive about their disdain for the US Constitution. As the great scholar of the administrative state John Marini observes, progressives were convinced that the end of History had rendered the principles of American constitutionalism insufficient for modern industrialized society. Moreover, science had revealed a new social reality that justified replacing the sovereignty of the people with the sovereignty of the state. While Roosevelt’s revolution upheld the authority of the US government and the Constitution, it undermined the sovereignty of the people — the very source of the regime’s legitimacy. As Marini notes, the moral foundation of American government was transformed, with the state’s purpose reoriented around conferring rights and satisfying needs. With government ostensibly “serving” the people, questions of sovereignty were easy to ignore. Furthermore, in its new role as arbiter and patron of rights and privileges, government needed an expansive bureaucracy armed with technical expertise; this is the foundation of the administrative state.

What began in 1932 reached full maturity in the 1960s during the Great Society, when it was institutionalized and made permanent. Today we have a government that is no longer encumbered by anachronisms like the separation of powers or consent of the governed. As the proprietor of sovereignty, the administrative state is free from all constitutional constraints and has therefore unlimited power and authority. As a result, Washington is preoccupied with its own administration and not the public interest. This has pushed the common citizen far outside the political realm and outsourced his interests to impersonal processes and procedures. It has also made government more insular, imperious, secretive, and self-interested. Unaccountable to its own citizens and divorced from the concept of a common good, Washington’s priorities consistently baffle the public; endless war and open borders are just two examples of the disconnect. As Marini puts it, “unlike constitutional rule, administrative rule is the rule of organized intelligence on behalf of organized interests.” This is the end of citizenship and the primacy of bureaucratic patronage. Is it any wonder, therefore, that Washington would allow millions of immigrants into the country, administer their economic and social needs, and graft the new arrivals into its sprawling patronage apparatus? Without sovereignty and the benefits of interest-group privilege, the average American citizen is practically invisible. 

But while the administrative state has unlimited power and authority, it lacks legitimacy. In spite of all, the Constitution remains that wellspring of legitimacy. This is a major vulnerability for the regime in Washington, which the ongoing dispute with the State of Texas has now laid bare. Time will tell whether the Texas border dispute will resolve quickly or slowly curdle into a full-fledged constitutional crisis, but one thing is certain: we are witnessing a fierce struggle between an administrative government in Washington and a dying constitutionalism embodied in red states like Texas. This is but one chapter, maybe the last, in an ongoing constitutional crisis that has been unfolding for almost a century. It is a struggle between authority and legitimacy, with our nation’s most fundamental principles at stake and the sovereignty of the American people hanging delicately in the balance. Whichever side wins will decide the fate of self-determination for this country and quite possibly for the rest of the West.

Lafayette Lee is an American writer and a contributing editor of IM—1776. He can be followed @Partisan_O.


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