The six-episode, 12-hour extravaganza, The American Revolution: A Film by Ken Burns, Sarah Botstein & David Schmidt, closes with a famous passage written by the esteemed Philadelphia physician, Dr. Benjamin Rush, in 1787: “The American war is over: but this is far from being the case with the American revolution.” Rush observed: 

On the contrary, nothing but the first act of the great drama is closed. It remains yet to establish and perfect our new forms of government; and to prepare the principles, morals, and manners of our citizens, for these forms of government, after they are established and brought to perfection. 

Historians often quote this passage because its appeal is so obvious. I did so myself in my first book, The Beginnings of National Politics, published nearly a half-century ago. 

But Burns and company revealingly omit the opening sentence of Rush’s passage, and that omission illustrates the essential disturbing flaw in their saga, which is appearing on PBS stations this autumn and winter. “There is nothing more common than to confound the terms of the American revolution with those of the late American war,” Rush wrote. The revolution itself had to be distinguished, Rush implied, from the war which brought its success. But its meaning and significance cannot be explained or subsumed by the one-battle-after-another motif, which gives the much-discussed saga its narrative force but also its tedium. 

Watching The American Revolution reminded me of Burns’ similarly epochal treatment, The Civil War, which aired 35 years ago. Its greatest shortcoming became evident in its final episode, which begins with Abraham Lincoln’s assassination and the Confederate surrender at Appomattox, then surveys the postwar period. This concluding episode relegates the history of Reconstruction to a virtual back story, worth noting but not explaining, when, in fact, its failure marked the greatest tragedy in American constitutional history. It consigned the nation to decades of Jim Crow segregation, the need for a Second Reconstruction of the South in the aftermath of Brown v. Board of Education, and the enactment of crucial civil rights statutes—including the landmark Voting Rights Act of 1965 that our current Supreme Court, in its jurisprudential wisdom, seems so intent on cancelling. 

The breakout star of The Civil War series, also on PBS, was Shelby Foote, the Mississippi novelist and lay historian whose mellifluous old-fashioned southern charm appealed to many viewers. But Foote—descended from prominent Mississippi slaveowners on his father’s side and Viennese Jews on his mother’s—was also a Lost Cause spokesman who said he would have happily fought for the Confederacy, as his ancestors had. Making him the leading narrative voice suggests the problem Burns wrestled with. The military history of the Civil War that Foote sketched so well can almost tell itself; its political origins and consequences, and thus its deeper significance, demanded and deserved more analysis. 

The dominant figure in The American Revolution is Rick Atkinson, a distinguished former Washington Post journalist and military historian who has already published one trilogy on the liberation of Europe in World War II and published two volumes of another trilogy on the Revolutionary War. Thankfully, Atkinson carries none of Foote’s ideological baggage. He is not here to carry the flag of the Loyalists, a subject that one of his colleagues on the program, Maya Jasanoff of Harvard, has covered quite well in her scholarship. Atkinson’s approach is purely military, and it is well complemented by the English historian, Stephen Conway. It is crucial to recall that the strategic initiative in the war always resided with the British. As heroic as the American fight proved, as many difficulties as it had to overcome, one can only understand the war by giving the British side an equal part in the story. 

Much of this military history, though, is still old news for historians and even general viewers. Where the series breaks ground is in its descriptions of the war’s impact on different groups of Americans or, more neutrally, on different inhabitants of British North America. Scholarly work on the American Revolution over the last quarter century has had two main themes. One involves the war’s effect on the general population, or what we call the social history of the Revolution. It is not simply a question of who took which side, but rather a matter of how individuals, families, and communities, or ethnic and racial groups, coped with the opportunities the Revolution created and the costs its duration imposed. 

The second main theme concerns the geographical diversity of North America, what scholars now call “Vast Early America.” Histories of the Revolution long emphasized the role of the major port towns, from Boston to Charles Town (soon to become Charleston). Much of the American countryside mattered only when the armies straggled over their terrain. In fact, the Revolution had profound impacts across the Appalachians and from the Great Plains to the Gulf of Mexico. 

But the political history of the Revolution—its origins, innovations, consequences—remains the strangely understated part of the story. In the final episode, just before we hear Dr. Rush’s concluding remarks, we listen to a few platitudinous sentences on the Constitutional Convention that would barely pass muster in a junior high school textbook. The two premier analysts of the Revolution’s political origins and its constitutional consequences—my late mentor, Bernard Bailyn, and his most distinguished student, Gordon S. Wood—do make a few brief appearances here and there. But their remarkable effort to describe the transformative impact of the Revolution on American governance, politics, and culture never seeps through. 

And without examining that impact, no viewer of this series would ever understand what made the Revolution revolutionary. Nor would anyone be able to explain why, at this moment of all moments in our history, with the Constitution teetering on implosion, the best way to think about the legacy of the Revolution involves retracing the course of the war from one campaign to another. That judgment seems all the more compelling because the techniques that Burns deployed so well in his other great productions are sorely missed here. There are no photographs to search minutely, no films to replay. Instead, we get modern painted renderings of events, historical re-enactors firing muskets, and dreamy videos of American landscapes, like the fog-swept mountains of the Carolinas. 

Burns and his colleagues cannot be oblivious to the choices they made. Back in 2016, he gave a wonderful commencement address at Stanford University, where I began teaching Revolutionary history in 1980. Burns vigorously denounced the striking ignorance and abuse of American history that Donald Trump displayed during his first presidential campaign. A few scattered boos were heard around the football stadium, but it was a bold performance that foresaw the unique dangers a Trump presidency would pose. 

Nine years and one foiled presidential coup later, the politically concerned viewer might ask: How should we think about the Republic’s revolutionary origins as we celebrate the 250^th anniversary of its independence? Challenges to our constitutional practices and the norms of governance arise daily, affecting all our major institutions of governance: the presidency, both houses of Congress, and the Supreme Court. Would it not be timely to explain how the governance in revolutionary America became the birth moment for the invention of the American constitutional tradition? 

What, then, did make the Revolution truly revolutionary? Consider this question, as historians do, from the vantage point of the participants. 

When the First Continental Congress met at Philadelphia in early September 1774, its basic purpose was to persuade Britain to repeal the Coercive Acts that Parliament had adopted to punish the town of Boston and the province of Massachusetts for the Boston Tea Party. In effect, Congress and its constituents wanted a return to the status quo ante of 1763. That would be an act of restoration, not revolution. When it adjourned in late October, many of its members hoped that the British government would realize how badly it had erred and find a way to accommodate the Americans. John Adams left Philadelphia thinking he would not need to attend a second Congress that would not be held. 

Eighteen months later, in May 1776, the Second Continental Congress resolved that the colonies should begin drafting new constitutions of government, and Adams exulted at being “sent into life, at a time when the greatest law-givers of antiquity would have wished to have lived.” His new friend Thomas Jefferson, soon to begin drafting the Declaration of Independence that brought him eternal fame, wrote that the framing of these constitutions had become “the whole object of the present controversy.” That was a truly revolutionary idea, but one whose significance Burns ignores. 

Rush, the revolutionary physician, had a much better diagnosis of the problem in 1787, when he drafted the Address to the People of the United States that Burns invokes at the close of the final episode. Burns draws upon the first and last paragraphs of this address but neglects everything that comes in between. And what were Rush’s real concerns? The agenda of the Constitutional Convention, set to gather in Philadelphia three and a half months later.

Consider just one of the issues Rush discussed that remains relevant today. Any modern analyst of Congress assumes that the desire of incumbents to be reelected is the best explanation of their behavior. In fact, that became important only in the 20^th century. The vast majority of members of the House of Representatives before 1900 served only one or two terms. Few senators served more than one term. 

Back in 1787, though, Rush had a different view of political ambition. He wanted to challenge the conventional view of the men who wrote the first state constitutions, who valued rotation in office and the practice of annual elections. “Where annual elections end,” the maxim went, “slavery begins.” Under the Articles of Confederation, a delegate to Congress could serve only three years out of six. The first member to be term-limited out of Congress was—of all people—James Madison. 

Rush, by contrast, believed that “Government is a science” and that public service could become a “profession.” Madison agreed. He thought members of the lower houses of the state legislatures should serve three-year terms, and if they were reelected, that would be beneficial to the public good. More important, what brought them to these conclusions was not some abstract musing about the best form of republicanism but the actual experience of wartime governance. There were, of course, multiple issues at play in shaping the agenda of the Federal Convention of 1787, but lessons learned from the war ranked high among them. 

Given the profound contempt that we now rightly direct against Congress, this is a fine moment to learn more about how the intertwining of wartime experience and political reflection gave Americans the Constitution they still inhabit. Perhaps we would do better with a term-limited Congress. It is clearly unconstitutional now, but it could prove a more popular amendment than we might fancy. The point is, the superficial treatment of the political dimensions and dynamics of the Revolution deprives the whole series of its educational value. 

Of course, Burns admittedly had good reasons to make the choices he did. But one cannot understand the Revolution unless one wrestles with its political ideas as well as the egalitarian ideals we ascribe to the Declaration. Describing those ideas is no easy task. Documentary makers always have educational aims, but they are entertainers, too, and Burns surely knew that the Civil War is more engaging than the Revolution. Focusing on the war for independence—its campaigns and battles, its examples of bravery and treachery, its impact on ordinary Americans, whether free, enslaved, or indigenous—thus makes narrative sense. 

But we, the people, have a right to be disappointed. Many viewers could have learned much more about what made the Revolution genuinely revolutionary, especially as our beleaguered constitutional Republic is lurching from one crisis to another under the reign of a king far madder than George III was in 1776. This is not quite the best way to commemorate the bold visions that John Adams and Thomas Jefferson shared, down to their providential deaths on the 50^th anniversary of the Declaration. 

The post What’s Wrong with The American Revolution by Ken Burns  appeared first on Washington Monthly.

This Constitution Day, which marks the 238^th anniversary of the adjournment of the Constitutional Convention, is also a dispiriting moment to dread how the nation will celebrate its semiquincentennial of American independence next year. Our historical imagination has always linked the Declaration of Independence of 1776 with its fulfillment in the adoption of the Constitution a decade later. Yet if one believes (as I wrote here three months ago) that we are living amid a state of perpetual crisis that amounts to systemic constitutional failure, much of the population will view this “celebration” in a state of despair. And they will wonder, as many scholars have argued, that the Constitution itself is a source of our political woes.

Amid this situation, one wonders what other plausible steps the Framers might have taken that would cure our constitutional failings. There were three particular moments at the 1787 Convention when the underlying structure of American politics could have taken a different form. Each moment involved the dispute over whether the states should have an equal vote in the Senate. Each pivoted on a critical choice that the delegates from the most populous (or largest) states faced: whether to confront the small states by threatening to break up the Convention if proportional representation was not applied to both houses of Congress. And each raised substantive problems that still plague American constitutionalism.

The first of these moments occurred shortly before the Constitutional Convention mustered a quorum on May 25, 1787, 11 days late. The Virginians, who had issued the invitation for the Convention, were in Philadelphia on time, as were the host Pennsylvanians—but the rest of the delegates straggled in. The second and most dramatic moment occurred on July 17, the day after the Convention narrowly approved the misnamed Connecticut (or Great) Compromise on Senate representation. And the third occurred on September 15, two days before the framers adjourned, in their last discussion of the rules for constitutional amendment.

Everything we know about these moments depends on James Madison’s Notes of Debates in the Federal Convention of 1787, which still dominate our understanding of what happened at Philadelphia. More than that, Madison was arguably the driving force behind the confrontation over representation in the Senate. Though legal scholars routinely hail Madison as the “father of the Constitution,” that is not the best account of his role.

A more accurate description would view Madison as the leading strategist of constitutional reform. No one contributed more than he did, first in making the Convention politically viable and then in shaping its agenda. He was the only framer in Philadelphia with a comprehensive reform program. His preparations laid the groundwork for the Virginia Plan that his close friend, Governor Edmund Randolph, introduced on May 28. That plan was drafted, however, only because the Virginia and Pennsylvania delegations were waiting for their delayed colleagues. Had they appeared on schedule, on May 14, the Convention might have taken a different course.

Madison made two calculations that were essential to his agenda. The first was constitutional in the fullest sense. The 36-year-old had concluded that an effective national government could not rely, as the Continental Congress had, on the willingness of the states to follow its decisions. Instead, the government had to be able to enact, execute, and adjudicate its own laws. This required a bicameral legislature, which drove Madison’s crucial political calculation. The representation in both houses would need to be proportional, based on population or property, or both. The main reason for this was Madison’s belief that the larger states would only agree to “the necessary concessions of power” if they were represented proportionally. The smaller states could protest all they wanted, but ultimately, “they must in every event yield to the predominant will.”

How to convince them to yield was the tactical problem that the Virginia and Pennsylvania delegations discussed in their caucus. The Pennsylvanians suggested that small states should be denied equal voting rights even within the Convention. The Virginians, probably led by Madison, responded that it would be a mistake to “beget fatal altercations” at the start. Instead, they should try to “prevail . . . in the course of the deliberations,” both by arguing for the necessity of the reform, but also by convincing the delegates from smaller states that they had no just claim to an equal vote.

Why did Madison believe this position would succeed? Mainly because he was promoting the new ideas of republican government that he had developed in the early spring of 1787. Madison anticipated that the small states would argue that the most populous states would collude to form majorities that could overpower the legitimate interests of smaller states. That was why the latter needed to keep the same equal vote in one house of the new Congress that they had possessed under the Articles of Confederation, which only had a single house of the Continental Congress.

The rebuttal that Madison and his allies, like James Wilson and Rufus King, offered was to insist that no set of shared interests could ever unite the large states in a lasting coalition. Their economies and demographic features, including religion, race, and ethnicity, were too diverse. When asked to explain how the largest states could insidiously unite, the spokesmen for the small states had to admit that while they could not offer specific scenarios of collusion, the mere prospect of such was sufficient.

On July 16, Madison and his allies discovered that their strategy had failed. The crucial vote that day showed five states supporting the equal vote, four opposed, and Massachusetts divided and essentially abstaining. Although some historians have called it “the Great Compromise” between large and small states, this decision was manifestly not a compromise. The small states won, and the large states lost.

Madison was not alone in believing that the large states would prevail. In the immediate aftermath of the July 16 vote, their delegates were uncertain how to proceed with the agenda. When Virginia Governor Randolph suggested that the Constitutional Convention should adjourn—meaning to adjourn overnight—William Paterson thought he meant adjourn for good. Paterson had been the main author of the New Jersey Plan, which had been introduced in mid-June as a weak alternative to the Virginia Plan, which would have preserved the equal state vote in the existing Continental Congress. Paterson now said he would welcome Randolph’s suggestion.  “It was high time for the Convention to adjourn,” he declared, asserting “that our Constituents should be consulted. No conciliation could be admissible on the part of the smaller States.”

Tempers cooled after Randolph apologized upon seeing that “his meaning had been so readily & strangely misinterpreted.” But everyone knew the large state delegations needed to decide their next move. Would they answer Paterson’s ultimatum with their own? That discussion took place the following morning, when delegates from the large states caucused, along with some members from the small states. A discouraged Madison observed that “the time was wasted in vague conversation.” Not everyone attending agreed with Madison on the importance of proportional representation in both houses. Others, possibly the majority of those caucusing, believed it was crucial for the Convention to continue its work.

In between these two observations, however, Madison recorded what I believe was his own opinion. “Several of them supposing that no good Government could or would be built on that foundation and that a division of the Convention into two opinions was unavoidable, it would be better that the side comprising the principal States, and a majority of the people of America, should propose a scheme of Government to the states.” They would, in effect, make a “separate recommendation” of the constitution they preferred, one that would ignore the sincere if misguided concerns of the small states, who would be free to accept or reject it.

This form of high-stakes politics was too risky for the framers to accept. However, the fact that Madison was even willing to consider this alternative merits attention. What might have happened if the experiment had been tried? Could the small states have gone their separate ways? And how different might a constitution framed under these circumstances have been?

Working historians rarely speculate in counterfactual hypotheses. They usually see their task as explaining what actually happened without relying on wild card jokers to produce alternative endings. Yet, because so much depended on the vote of July 16, and because we are locked into that decision (a problem to be discussed shortly), a modicum of speculation might still have its uses.

What other path might the small states have taken if the larger states had created a constitution more to their liking? Would Rhode Island, the proverbial home of “Jews, Turks, and infidels,” have sought a protective alliance with the Catholic monarchies of France and Spain, the so-called Bourbon Family Compact? What would New Jersey—a keg tapped at both ends by the flourishing ports of Philadelphia and New York City—have done to preserve its economic independence? What about Maryland, that straggling state which combines its Eastern Shore counties with the narrow panhandle along the southern border of Pennsylvania? And would Delaware, often known as the “three lower counties” of William Penn’s proprietary grant, really be able to “find some foreign ally of more honor and good faith,” as their delegate Gunning Bedford once threatened?

This is the droll part of this speculation. The more serious question, constitutionally, involves imagining a different kind of Senate that would neither be elected by the state legislatures nor run with an equal state vote.

It helps to recognize that regarding the legislature’s upper house as a representative body was still a novelty for the American revolutionaries. The House of Lords, which was then much admired as a balancing mechanism within the vaunted British constitution, was not a representative body. It was simply the aristocracy meeting in one chamber, with no constituents to report to. The old colonial governments had councils that were considered to be primitive surrogates for the House of Lords, but their members were not aristocrats, and they acted mainly as advisory bodies to the governors, who had their own power to veto legislation.

The questions about what a federal Senate would be or what it would do remained more open than we might assume. James Wilson of Pennsylvania, for example, believed that senators should be elected by the people on a regional basis. The Virginia Plan originally suggested that state legislatures would nominate senatorial candidates and the House of Representatives would choose them, but without any guarantee that every state would have a senator. Madison saw the Senate not as a representative body but as a deliberative one. It should be a small chamber, and its main goal would be to modify or oppose the “impetuous” political currents that were likely to swirl through the lower house. Even after losing the critical decisions on the equal vote and the election of senators, he believed that a well-established republic needed a capable Senate. But he always thought that the entire idea of an equal state vote was flawed because the less populous states did not have distinct interests of their own that required special protection.

There was one final footnote to this story. On September 15, as the framers were making their final edits, the last subject they debated was the rules for constitutional amendments. Roger Sherman, the Connecticut delegate who had helped draft both the Declaration of Independence and the Articles of Confederation, “expressed his fears that three fourths of the States might be brought to do things fatal to particular States,” including “depriving them of their equality in the Senate.”

Sherman did not explain why this wound would be fatal, but he doggedly insisted that all the small states deserved the special protection that equal representation would bring. Madison, in reply, argued that if every state sought “special provisos” like this, “every State will insist upon them.” Sherman’s amendment to protect the equal vote failed, as did his further motion to eliminate the amendment procedure altogether. But Madison records that after the delegates heard “the circulating murmurs of the small States whirling through the room,” the entire Convention relented on a unanimous voice vote after Gouverneur Morris proposed “that no State, without its consent shall be deprived of its equal suffrage in the Senate.”

Here, once again, an opportunity was missed. Imagine if the Convention had included a provision similar to the twenty-year ban on any legislation affecting the slave trade. That interval would have put Madison’s sensible and entirely accurate point to an empirical test as to whether the size of a state’s population did or did not determine its interests. Over time, it could have prevented our own oft-repeated comparison between California and Wyoming.

Such an experiment could also have freed us from the problem we still face today. Suppose circumstances did force us to hold a new constitutional convention, what rule of voting would it follow? Would we not face the same dilemma that the Virginians and Pennsylvanians discussed in May 1787?

The post The Great Might-Have-Been of the Constitutional Convention appeared first on Washington Monthly.

The idea that the United States awaits some dread constitutional crisis has become commonplace. For lawyers, such a crisis would likely involve Donald Trump’s administration defying the Supreme Court on some critical ruling. But other crises are readily imaginable. Might President Trump invoke the Militia Act to manipulate the 2026 congressional elections, or order the Marines to take sites in Greenland without congressional approval, which seems ever more plausible after the June 22 bombing of Iranian nuclear facilities?

Such scenarios are not unfounded, but they do not diagnose our true malady. Our ongoing constitutional crisis began with the presidential election last November 5. Reelecting an individual culpable for January 6 who has twice made a mockery of the presidential oath of office is itself a constitutional crisis. Nothing in his past or current behavior suggests that Trump has ever felt fidelity to his constitutional duties.

Once a constitutional crisis becomes an endemic condition, the term no longer usefully describes our collapsing system. Instead, we live in an era of constitutional failure when the relevant institutions cannot fulfill their responsibilities.

Because constitutional failure is a term we have never needed to use, it merits a precise definition. First, it must identify the specific situations where the government institutions have manifestly not fulfilled their constitutional functions. Second, it should treat these omissions not as occasional lapses but systemic defects. Third, it must explain how the political and ethical norms of constitutional governance have evaporated.

To apply this framework to the second Trump administration is hardly difficult. The only problem is where to begin. Consider its authoritarian reliance on executive orders to vitiate legally established government activities, its attempt to intimidate institutions outside of government to do its bidding, and its insistence that servile loyalty to the president outweighs fidelity to constitutional norms. That some commentators describe this last practice as the Führerprinzip—the Nazi principle that the will of the leader transcends all legal norms—tells us everything.

Deciding whether the Constitution is failing requires asking if and why the other two branches of government have been remiss in checking a rogue executive.

Their most important failures involve the two clauses that would have disqualified Trump from reelection: the presidential impeachment clause and Section 3 of the Fourteenth Amendment. But starting in a more obscure location is better: the two Emoluments Clauses restricting the material benefits a president can receive from other governments. In his first administration, three suits sought to force Trump to comply with these two clauses. One, brought by members of Congress, was plausibly dismissed on standing grounds, because a minority faction in Congress cannot litigate to make the body implement a power it already possesses. Two other cases, however, progressed in the lower courts, but once they were appealed, the Supreme Court slow-walked them until Trump left office, leaving the issue moot.

The Court thus casually squandered an opportunity to clarify the meaning of a provision that badly needs enforcement. All previous presidents had scrupulously adhered to the Emoluments Clauses, which embody the fundamental principle that presidents should neither seek nor hold office for private gain. The honor of holding the highest office in the land should displace every other ambition. But this president and his family have more material, even sordid aims to pursue. With Trump, the imperial presidency and the presidential emporium have converged. This White House is for sale, whether through gifts from wealthy entrepreneurs, the manipulation of tariffs, and, perhaps worst of all, the family’s active involvement in crypto meme speculations.

But the two Emoluments Clauses occupy only obscure niches in the Constitution. The same cannot be said of the powers being abused to eliminate federal agencies and departments and purge civil servants. These agencies and officials derive their authority from congressional enactments and appropriations. All are covered by the Impoundment Control Act of 1974, adopted to constrain the unilateral efforts of President Richard Nixon to reduce federal spending on his own authority. All involve the signature constitutional obligation of the president to “take care that the laws be faithfully executed,” not least because every statute requires either the assent of the chief executive or, in the case of a presidential veto, its reenactment by supermajorities in both houses of Congress.

The most fundamental purpose of constitutional government, as it evolved in 17th-century England and revolutionary America, was to make the executive power susceptible to legislative control. It did not matter whether the executive was monarchical, ministerial, or presidential. The key point established by the English Glorious Revolution of 1688 was that the Crown had to rule with parliamentary consent or supervision.

The executive could not arbitrarily suspend or dispense with enacted legislation. The royal suspension of law topped the list of grievances that the parliamentary proponents of the Glorious Revolution compiled in the Bill of Rights that accompanied the accession of William and Mary to the throne. As its first resolution stated, “the pretended power of suspending of laws, or the execution of laws by regal authority, without consent of parliament, is illegal.”

A similar statement holds a prominent place in another famous Declaration. The second allegation leveled against George III on July 4, 1776, was that “He has forbidden his Governors to pass Laws of immediate and pressing importance unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.” In Anglo-American tradition, the executive suspension of duly enacted law is prohibited.

One would expect to hear Democratic members of Congress make this case repeatedly. Their silence on this point identifies one great political mystery of the day. Republican members cannot evade this accusation either. When audiences at constituent meetings repeatedly shout, “Do your jobs,” they have a better grasp of Congress’s responsibility than their feckless representatives.

A similar argument applies to the rogue agency implementing this strategy. The Department of Government Efficiency (DOGE) cannot be a department in the conventional sense. It was not legally created as such; instead, the obscure United States Digital Service underwent a radical mutation in name and purpose by executive order, from improving the government’s use of information technology to decimating its agencies.

Given DOGE’s scope, a naïve observer would think its head would require Senate approval. The Senate did not assert that claim. Nor do many senators seem to believe this power over appointments is all that important. Their willingness to confirm the nomination of a recovered heroin addict and anti-vaxxer as Secretary of Health and Human Services, the head of the World Wrestling Federation as Secretary of Education, and a Fox & Friends Weekend host as Secretary of Defense marks the Appointments Clause as yet another failure.

Nor can the House of Representatives escape criticism for its dereliction of duty. The legal basis upon which Trump has launched his rollercoaster policy of raising, lowering, and suspending tariffs is less than flimsy, as the recent decision of the specialized Court of International Trade fully explains. The Constitution empowers Congress “to lay and collect Taxes, Duties, Imposts, and Excises,” with the House of Representatives initiating steps. Congress has authorized the president to modify tariffs only in urgent cases when an emergency exists. It cannot delegate the authority to levy a shifting and massive tax (that is, a tariff ultimately paid by consumers) to the president to impose unilaterally, another power the Stuart crown tried to wield arbitrarily in the seventeenth century.

In the face of this congressional passivity, what path of constitutional repair is left open? Unsurprisingly, the best answer remains the courts. Although it has taken time to respond to the turmoil Trump has unleashed, the judiciary’s actions have been encouraging. Remarkably, the difference between Republican and Democratic-appointed judges has been slight, suggesting that judicial independence enshrined in Article III may be fulfilled amid this grave situation.

Yet, with the current Supreme Court, one cannot be too confident. Why? Its responses to the two 2024 critical election cases remain deeply troubling to anyone who takes the injunctions of the Constitution seriously.  The Court handled one case with striking expedition. But it manifestly stalled the other with a run-out-the-clock set of procedural delays that deprived voters of findings they were entitled to possess before November 5. The decisions in Trump v. Anderson (which involved the application of Section 3 of the Fourteenth Amendment to Trump’s eligibility to appear on the Colorado primary ballot) and Trump v. U.S. (the presidential immunity case) should sit atop any hit list of constitutional failures.

Two conditions define this failure. First, whatever its motivations, the Supreme Court majority simply refused to recognize the gravity of January 6, 2021, a date which stands as the constitutional counterpart to the surprise attacks of December 7, 1941, and September 11, 2001. Rather than focus on specific facts and constitutional aspects of January 6 or confront the novel attempt of a sitting president to obstruct the peaceful transfer of power, the majority insisted, in Justice Neil Gorsuch’s words, that “We’re writing a rule for the ages.” In his opinion, Chief Justice John Roberts similarly observed that “we cannot afford to fixate exclusively, or even primarily, on present exigencies” or “transient results.” One can only wonder what makes some unforeseeable future contingency more urgent than the facts at hand. Law evolves not by dealing with imaginary contingencies but by making sense of existing facts.

The second condition seems more surprising. It is the stunning inadequacy of the majority’s understanding of constitutional history and core concepts of American constitutionalism. In Trump v. United States, the chief justice emphasized the desire of the Framers to create an executive who could act with “vigor,” “energy,” and “dispatch.” Any threat of being prosecuted for undertaking decisions requiring these qualities would weaken the presidency, thus providing a rationale for presidential immunity.

 That argument presents only half the story. The other quality the Framers insisted on and valued higher than “energy” and “vigor” was “responsibility,” which is best defined in Article II, requiring the president to “take care that the laws be faithfully executed.” That was the antithesis of what Trump did on January 6, which is precisely why his prosecution should have been expedited, not prevented.

The Court similarly erred in its concern about Trump’s indifferent willingness to put Vice President Michael Pence in danger. Here, the chief justice vaguely invoked the theory of separation of powers, stressing the close relationship between the president and vice president. But this emphasis badly misstates their relationship. For much of its history, the vice presidency was not—repeat, not—considered part of the executive. The office’s original sole constitutional function was to preside over the Senate. That was the capacity in which Pence was acting on January 6. The real threat to the separation of powers on January 6 came from the outgoing president’s depraved effort to stay in power.

The Supreme Court defaulted on its responsibility. Its duty was not to fret over future presidential prosecution but to deal with the facts at hand so that the electorate would be fully informed before November 5. By stifling the proceedings in Judge Tanya Chutkun’s courtroom, the Court made its unique and potentially lethal contribution to our failing Constitution.

In our fractious polity, fresh insults to constitutional norms and settled practices of governance occur daily. That is why the phrase constitutional crisis no longer describes our situation. The Constitution has failed, and we no longer know which institution will rescue it.

The post It’s Not Just a Constitutional Crisis in the Trump Era. It’s Constitutional Failure appeared first on Washington Monthly.