Skip to content
Search

Latest Stories

Top Stories

It's Time to Acknowledge America’s Constitutional System is Broken and Begin Building a New One

It's Time to Acknowledge America’s Constitutional System is Broken and Begin Building a New One
Can the Constitution stop the government from lying to the public?
Can the Constitution stop the government from lying to the public?

Commentators and political figures are now engaged in heated debates about whether America is experiencing a constitutional crisis. I admire their fortitude and dedication to our Republic, but they miss the most important point.

The crisis has already arrived, showing that constitutional designs are failing. Rather than trying to defend the status quo, it is time to build new ways to institutionalize democracy and the rule of law. The difficulty of getting on with that work was illustrated on February 27 when Harvard Law School assembled a distinguished panel of experts to consider the question, “Is the U.S. experiencing a constitutional crisis?”


At the Harvard event, Professor Jeannie Suk Gersen even warned, "Employing phrases like ‘constitutional crisis’ without sufficient caution or knowledge of law and facts involved in the various cases… could help foster a confrontation where there isn’t one yet. ‘As people who care about the rule of law, I think that we need to think about our own participation in hastening its demise.’”

As the New Times reports, Dean Erwin Chemerinsky of the University of California, Berkeley, disagrees. “We are in the midst of a constitutional crisis right now,” he says. “There have been so many unconstitutional and illegal actions in…the Trump presidency. We never have seen anything like this.”

Sign up for The Fulcrum newsletter

The Times notes that Chemerinsky “ticked off examples of what he called President Trump’s lawless conduct: revoking birthright citizenship, freezing federal spending, shutting down an agency, removing leaders of other agencies, firing government employees subject to civil service protections and threatening to deport people based on their political views.”

“Systematic unconstitutional and illegal acts,” Chemerinsky concluded, “create a constitutional crisis.”

Writing in last week in The Hill, Jonathan Turley made fun of such talk. “It’s only March, and we have yet another declaration of a ‘constitutional crisis.’”

He was particularly scornful of “a letter from roughly 950 law professors, who generally refer to actions and policies implemented by President Trump as ‘beyond his constitutional or statutory authority.’” So — what happens,” he asks, “if the ‘experts hold a crisis and no one shows up?”

He answers, “After years of such claims, the perpetual crisis has left a dwindling number of people inclined to panic. Many have more pressing matters and have the same reaction as former Secretary of State Henry Kissinger: ‘There cannot be a crisis next week. My schedule is already full.’”

Other commentators urge patience and express confidence in the resilience of our political institutions. I am not persuaded.

As I see it, “the are-we or aren’t-we in a constitutional crisis” debate is like arguing about the right diagnosis after the patient has expired.

Catholic University’s John Kenneth Whitegets it right when he says, “The Constitution has already collapsed.” He makes clear that while this country retains the rhetoric and formal institutional arrangements that the Constitution outlines, it does not have much of the substance left.

“Federal officeholders,” White observes, “including the president, are required to swear or affirm they will ‘defend’ the Constitution. But for Trump and his compliant Republican colleagues, these are merely pro-forma pledges. For them, paying lip service to the Constitution means reciting words without meaning.”

Some resist White’s pessimism. As evidence, they point to growing public discontent with the Trump Administration and victories in the courts.


But as M. Gessen cautioned in her 2016 essay “Autocracy: Rules for Survival,” citizens should not “be taken in by small signs of normality.” And “Institutions will not save you.”

The constitution’s collapse has been a long time in the making. President Trump is simply razing an already hollowed-out structure.

As I wrote in 2017, “While we have been focused on partisan divides over government policy and personnel, an almost invisible erosion of the foundations of our political system has been taking place. Public support for the rule of law and democracy can no longer be taken for granted.” This seems even truer today.

According to a recent New York Times/Siena College poll, “A majority of American voters across nearly all demographics and ideologies believe their system of government does not work, with 58 percent of those interviewed…saying that the world’s oldest independent constitutional democracy needs major reforms or a complete overhaul.”

In addition, fundamental flaws in the constitutional system are made visible in the behavior of our elected representatives in Congress. Both parties are now less interested in ensuring that the separation of powers and checks and balances envisioned by the Framers work than being loyal followers of the president when he is a member of their political party.

White argues that without any formal constitutional change, “The presidential system created by the Founders has morphed into an American-style parliamentary system. Party line voting has become the norm in Congress.” Deference to the president is now so pervasive that even when the president says, “I alone can fix” America’s problems or is dismissive of the Congress itself and prefers rule by executive order, the majority party barely protests.

White notes that with the rise of “Donald Trump’s ‘Caesarean presidency,’ Republicans have been content to forfeit their constitutional responsibilities.” In addition, the amendment process, the Constitution’s mechanism of adapting to new realities, is so moribund that it cannot save the document or us.

Beyond these institutional breakdowns, in the age of social media and the attack on facts and expertise, America is now, as Jeffrey Rosen puts it, “Living James Madison’s Nightmare.”

“Madison’s worst fears of mob rule,” Rosen says, “have been realized—and the cooling mechanisms he designed to slow down the formation of impetuous majorities have broken….Twitter, Facebook, and other platforms have accelerated public discourse to warp speed, creating virtual versions of the mob.”

Anyone who uses social media knows that “Inflammatory posts based on passion travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media undermine it by creating bubbles and echo chambers in which citizens see only those opinions they already embrace.”

If we survive the current crisis, the first step on the road to recovery will involve acknowledging that the existing Constitution can neither cope with the new political and technological developments that have brought us to this moment nor prevent the rise of authoritarianism and tyranny. We must stop clinging to the belief that we can respond effectively to that crisis and emerge with the existing arrangements intact.

Only then can Americans get down to the hard work of imagining a constitution that can adapt and improve democracy and the rule of law. That imagining will also help inspire action and build alliances with millions of Americans who have been telling pollsters that they want radical change.

Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.

Read More

The U.S. Is Rushing To Make AI Deals With Gulf Countries, But Who Will Help Keep Children Safe?

A child's hand holding an adult's hand.

Getty Images, LaylaBird

The U.S. Is Rushing To Make AI Deals With Gulf Countries, But Who Will Help Keep Children Safe?

As the United States deepens its investments in artificial intelligence (AI) partnerships abroad, it is moving fast — signing deals, building labs, and exporting tools. Recently, President Donald Trump announced sweeping AI collaborations with Gulf countries like Saudi Arabia and the United Arab Emirates. These agreements, worth billions, are being hailed as historic moments for digital diplomacy and technological leadership.

But amid the headlines and handshakes, I keep asking the same question: where is child protection in all of this?

Keep ReadingShow less
Illinois Residents Grapple With Urban Flooding

Rear view of a person standing in the street flooded with water

Getty Images//Stock Photo

Illinois Residents Grapple With Urban Flooding

Following months of research, canvassing, and listening to community needs, journalists, including Britton Struthers-Lugo, produced solutions-based stories about the challenges faced by the Berwyn, Illinois, community.

In Part 1, Struthers-Lugo examines the issue of urban flooding, a growing concern for residents and infrastructure in Berwyn.

Keep ReadingShow less
Proposed Proof-of-Citizenship Bill Could Impact All Registered Voters in Texas

Opponents of a proof-of-citizenship bill before Texas lawmakers say many women in rural areas, who could get targeted by the bill, do not have a birth certificate matching their current last name.

Golib Tolibov/Adobe Stock AI

Proposed Proof-of-Citizenship Bill Could Impact All Registered Voters in Texas

Voting rights advocates in Texas are speaking out against a proof-of-citizenship bill before lawmakers.

Senate Bill 16 would require new registrants and some existing registered voters to prove they are U.S. citizens.

Amber Mills, issue advocacy director for the Move Texas Civic Fund, said the requirement would be in addition to what the state already does to check someone's eligibility.

"When you're completing a voter form, you do also have to submit either your driver's license number or your Social Security number," Mills pointed out. "That's really important because that is how the state verifies who you are, and that's a key indicator that they use to protect their databases on the back end."

Even if you were born in the U.S., the bill could require you to show proof of citizenship with a passport or birth certificate matching your current name. According to the Secure Democracy Foundation, more than 38% percent of rural and small-town Texans do not have a passport.

Anyone who cannot prove citizenship would be placed on a separate voter roll and could only cast ballots in the U.S. House and Senate races.

Emily French, policy director for the advocacy group Common Cause Texas, said the additional barriers could prevent many residents from casting their votes in local, state and presidential races.

"All the DPS systems, all the immigration systems which say that they are citizens, but there can still be mistakes that mark them as noncitizens and could throw them off the voter rolls until they come in with these documents that they don't have," French explained.

The bill directs the Texas Secretary of State's Office to check all registered voters' status by the end of the year and send the names of registered voters who have not proven their citizenship before September 2025 to county elections offices.

Mills noted if you are flagged, there is no online system to comply with the request and all paperwork must be submitted in person.

"We are not disputing the goal of having only eligible citizens on the voter rolls, but we know that Texas already has strong systems in place," Mills emphasized. "It's ultimately the state's responsibility, the county's responsibility to do these voter roll checks, but what SB 16 would do is not change any of that, not improve any of that. It would just add an additional burden."

Sign up for The Fulcrum newsletter

Keep ReadingShow less
Vladimir Putin and Donald Trump shaking hands
President Donald Trump and Russian President Vladimir Putin shake hands at the 2019 G20 summit in Oasaka, Japan.
Mikhail Svetlov/Getty Images

Shameful Concessions Will Not End Putin’s Threat to World Peace

Our President has proposed a shameful give-away of Crimea and an additional chunk of Ukraine to Vladimir Putin. This compounds President Obama’s shameful acquiescence in Putin’s seizing Crimea, and President Biden’s also failing to live up to the security assurances that the United States and Russia gave Ukraine in 1994 when Ukraine agreed to give up its nuclear arsenal in the Budapest Memorandum.

From my experience as a litigation attorney who participated in numerous mediations before retiring, I have found that successful mediations require a realistic assessment of the strengths, weaknesses, wants, and needs of the parties, including their willingness to take a calculated risk. In court, one never knows what a judge or jury will do. The outcome of war is likewise uncertain. In negotiations, wants should not obscure a realistic assessment of one’s needs. A party’s unmet true nonnegotiable needs can justify the risk. What are the needs of Ukraine, Russia, and the West?

Keep ReadingShow less