Welcome to America's Fourth Great Constitutional Rupture
Americans are prone to venerate our Constitution, mythologizing the founding generation as uniquely wise, and our subsequent constitutional history as a process of evolution toward an ever more perfect union.
But American constitutional history is far more fraught, its evolution a kind of punctuated equilibrium marked by mass extinction of prior forms and precedents. Each of these moments has reshaped the way our Constitution works in fundamental ways, providing a new framework for normal politics for a new era.
The scope of President Trump's challenge to the existing constitutional order — largely through a blitzkrieg of executive orders, many of them in blatant disregard of established precedent and legislation — suggests we may be in the process of another such discontinuous and disruptive moment.
The question is whether it will transform our constitutional order fruitfully yet again, or accelerate a final degeneration into Caesarism.
The answer cannot be determined simply by looking at the scope of Mr. Trump's actions or the ways in which they violate the law as currently understood. As the legal scholar Bruce Ackerman delineated in his classic trilogy on popular constitutionalism, 'We the People,' previous moments of radical transformation often violated the rules that governed normal politics.
The first such moment was the founding itself. Delegates to the Constitutional Convention were sent to revise the Articles of Confederation; instead, they proposed an entirely new form of government chartered by 'we the people of the United States,' sitting both above and alongside states that had previously been the only sovereign entities.
Persistent tension between federal and state sovereignty ultimately resulted in the Civil War. Union victory led to a second constitutional moment with the Reconstruction amendments, which could be passed only because the former rebel states were under military occupation. The 13th through 15th Amendments were intended to end slavery and establish equal citizenship for those freed and their descendants, but the 14th Amendment's Due Process Clause was interpreted to protect a robust right to form contracts, which limited the government's ability to regulate business or enact labor protections. It helped to empower the emerging titans of industry and finance as they transformed the national economy into an industrial powerhouse.
When America's economy collapsed in the Great Depression, a third constitutional moment was initiated by the New Deal. The administration of Franklin Delano Roosevelt and a Democratic Congress passed legislation dramatically expanding the federal government's intervention in the economy and establishing much of the administrative state. This violated the established understanding of various constitutional provisions, including the Interstate Commerce Clause, but after initially resisting, the Supreme Court reversed decades of precedent to allow this fundamental transformation to take place.
None of the intervening eras between these moments were tranquil. The antebellum period was marked by profound fights over slavery, tariffs, territorial expansion and the role of a central bank. The latter half of the 19th and early 20th centuries were wracked by conflict between labor and capital and between indebted farmers and lending banks. And the post-New Deal order has been marked by backlash over the court's role in desegregation, abortion rights and other areas, along with continued battles over the scope of the New Deal transformation itself.
But these conflicts, even when expressed through battles over the Constitution, did not result in new constitutional moments. They did not represent fundamental ruptures in the nature and balance of the Constitution that could be enacted only by violating pre-existing norms and processes.
Mr. Trump's challenge is strikingly different. He aims to unbind the executive from constraints imposed by the other branches and the normal process of administrative lawmaking. To stand, these changes will require the other players in our constitutional order to accept that the president by himself can make changes of such magnitude. That would be a fourth constitutional revolution.
President Trump has already taken numerous steps to seize direct control of the federal bureaucracy in ways that violate norms of independence. He has fired career prosecutors and appointed a head of the F.B.I. determined to bring the bureau under direct presidential authority. Elon Musk's initiative, called the Department of Government Efficiency, has installed itself in the Office of Personnel Management with a view to purging the bureaucracy of anyone who opposes the president's plans for transformation. Finally, in direct violation of the law, Mr. Trump has fired inspectors general without notice across a wide array of federal agencies.
These actions may arguably be defended under the doctrine of the unitary executive, which the current Supreme Court sometimes views favorably. An aggressive formulation of this doctrine would hold that any division within the executive branch, and any intrusion of the legislature into its inner operation, is a violation of the Constitution's separation of powers. The court has never taken quite that strong a stance, but the Trump administration's actions may require it either to do so or to draw a line short of that point, and hold to it in the face of possible defiance.
A more fundamental challenge to the constitutional order comes from Mr. Trump's assertion of a broad right to impound, or refuse to spend, funds appropriated by Congress. The president's ability to do this is limited by a 1974 law, the Impoundment Control Act, but some conservative legal scholars associated with the administration have long viewed this law as unconstitutional.
The court may agree that the 1974 law is unconstitutional, again citing the doctrine of the unitary executive. But before 1974, the actual use of the impoundment power was limited. If the court blesses the sweeping right to impound asserted by the administration, it would effectively grant the presidency a veto over all spending, rendering much of Congress's budgetary process advisory. Combine this with the president's acknowledged wide latitude to impose and remove tariffs, giving the executive partial control of the revenue side of the budget as well, and the scope of Congress's power of the purse will have been narrowed dramatically.
Most sweeping of all, President Trump's executive order on birthright citizenship effectively asserts the right to reinterpret the Constitution itself. Birthright citizenship has been the rule in America since long before the passage of the Constitution, derived as it was from precedent in English common law. But it was enshrined in the constitutional text via the 14th Amendment's citizenship clause and has been affirmed repeatedly in subsequent case law.
Defenders of the executive order limiting this right point out that, at the time of the ratification of the 14th Amendment, the concept of unauthorized immigration had not yet been enacted in law. They say that the ratifiers could not have imagined that millions of people would enter the country illegally, or that any would come temporarily just to claim citizenship for their children, so the amendment's language should be reinterpreted in light of new conditions. They point out further that other countries with the same common law inheritance as the United States, like Britain, Australia and India, have over the past 40 years enacted limits on birthright citizenship.
What is extraordinary about the president's order, though, is not merely that it flagrantly violates established precedent, but that it contradicts Congress's own authorizing legislation related to immigration, which relies on the established interpretation of the Constitution. If the court allows Mr. Trump's order to stand, it will not only be revising its understanding of the text to accommodate the elected branches, it will also be privileging the executive over Congress as the voice of the people in interpreting our most fundamental law.
The central justification for all of these moves is the view that the American constitutional order has become sclerotic. The bureaucracy, it is claimed, operates with a mind of its own, unresponsive to either the people's will or the nation's interests. Congress is too divided and hesitant to make fundamental changes; it prefers to delegate interpreting the Constitution to the courts and regulatory rule-making to the executive whenever possible. In this view, if anyone — especially the court — stands in the way of an energetic executive, it will only be standing for stasis and failure, and should be ignored.
That view can be rebutted in any number of ways. Congress, the executive and the federal bureaucracy worked together very effectively under the first Trump administration, for example, to respond to the economic consequences of Covid (though the fraud that resulted is now being cited as another justification for attacks on the bureaucracy that was faithfully executing the orders it was given). But even if the grim diagnosis is correct, the deeper question is what will remain of our constitutional order after such radical surgery.
The American presidency has often been called imperial. The executive was liberated long ago from most constitutional restraints on its war-making power, and the court in Trump v. United States has already largely exempted it from criminal prosecution. Recent presidents have pushed the envelope of executive power, including that of President Barack Obama in providing protection for unauthorized immigrants who arrived as children and President Joe Biden in ordering the forgiveness of some student loans.
Mr. Trump would take these exceptions and make them the new norm. He would give an already quasi-imperial executive unfettered control of a bureaucracy with far-reaching regulatory powers, unbind its prosecutorial function from the norm of political independence, allow it to defy the legislature on spending and demand deference to it in its interpretations of the Constitution. It does not strike me as unreasonable to call the resultant order Caesarian in character.
Where would that leave America's Constitution? In a subsequent book, 'Revolutionary Constitutions,' Mr. Ackerman notes that revolutionary movements that have produced enduring democratic constitutions have often depended on charismatic populist leaders willing and able to push through radical change. What distinguished them from leaders whose rule degenerated into dictatorship was precisely their determination to leave enduring institutions behind, ones that made power responsive to the people, rather than merely consolidating it in their own hands.
Many supporters of one or another aspect of the Trump agenda see themselves as saving or restoring a Constitution that has long been violated, and those who disagree about the substance should not dismiss those motives out of hand. But a constitutional Caesarism is a contradiction in terms. If their aim is constitutional renewal, it behooves them to delineate the contours of the developing new order, to describe what they would build before they tear down.
Most important, if we are facing another constitutional moment, we — the people's defenders in the court, their representatives in Congress and the people themselves — need to attend as carefully to what is being established as we do to what may pass away. Constitutional forms may change, but government of the people, by the people and for the people must not perish from the earth.
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