This Potential Constitutional Crisis is More Serious than 1860 or 1932

Ronald L. Feinman is the author of Assassinations, Threats, and the American Presidency: From Andrew Jackson to Barack Obama (Rowman Littlefield Publishers, 2015).  A paperback edition is now available.

The United States has faced major constitutional crises before, most notably the Civil War, and the presidential election of 1860 is regarded as the greatest constitutional crisis ever faced by this nation.

There have been other times of crisis at the time of national elections, most notably 1932, at the worst moments of the Great Depression.

Additionally, there were extended time frames until resolution of the presidential elections of 1800, 1824, 1876, and 2000.

But in all six cases, the losing candidates--John C. Breckinridge in 1860, Herbert Hoover in 1932, John Adams in 1800, Andrew Jackson in 1824, Samuel Tilden in 1876, and Al Gore in 2000--were patriotic and conceded, certainly not an easy thing to do.

But today, with fewer than 40 days to the presidential election of 2020, we face a crisis that has never occurred before, the stated refusal of President Donald Trump to concede if he loses the election, and his stated intention to cause legal barriers and delays, and possibly to seek to push friendly state legislatures to select presidential electors. Trump will not guarantee a peaceful transition of power on January 20, 2021. The scenario of Trump and Joe Biden both claiming the Presidency on Inauguration Day, creating the danger of chaos, anarchy, and violence in the nation’s capital and across the nation, endangering the security of Biden and his running mate, Kamala Harris, is alarming beyond measure.

With Trump facing likely prosecution, at the least by New York State, after he leaves the presidency, he has nothing to lose, from his perspective, and will have no qualms about disrupting the nation, and potentially causing civil war in the streets, with all of the firearms that many of his supporters possess.

Trump even hopes that a new Supreme Court appointee to replace Ruth Bader Ginsburg could be the decisive vote, if the election goes to the Court as it did in 2000, and also partially, in 1876.  This would be a time for the Supreme Court to be above politics, and one would hope that Chief Justice John Roberts, and even Trump appointee Neil Gorsuch, who has demonstrated independence on the Court, might be willing to the right thing, and stop the crisis dead in its tracks, something it would be very difficult for Trump to prevent.

It also would be important for many Republicans in Congress, who have so far demonstrated unwillingness to challenge Trump, to be as courageous and principled as Republicans, led by Senator Barry Goldwater of Arizona, Senate Minority Leader Hugh Scott of Pennsylvania, and House Republican leader John Rhodes of Arizona, were in August 1974.  They went to the White House and informed President Richard Nixon that he should resign during the Watergate Scandal, and despite Nixon’s actions, which were leading to impeachment, even he had the dignity and sense of proper behavior to follow through, and end what was becoming a terrifying constitutional crisis in a nonelection year. 

We face a month or more of tension, and the possibility of another 78 days from the election date to the inauguration, and in the midst of the COVID-19 Pandemic, the worst economy in 80 years. Amid so many problems and issues, America needs a break, and the certainty that the election results in 2020 will not undermine the future of 330 million Americans, due to the maniacal behavior of the 45^th President.