There Is No Piecing Back Our Badly Shattered Constitutional Order
We are past the point of crisis and have entered an era when our political disputes will be settled by the raw exercise of power, not the law
Since Jan. 20, the United States has been in a state of rapid constitutional collapse. Congress’ power of the purse, its most fundamental prerogative, has been usurped; statutory laws have been suspended by claimed “emergency” powers; the requirement for Senate confirmation has been made irrelevant; a transparently political purge of both the civil service and the armed forces has been launched; the president has threatened aggressive military force against longtime allies; a decree was issued to strip constitutional citizenship rights; our treaty obligations have been blown up with a self-sabotaging trade war; mass pardons have been used to gleefully sanction political violence; courts have been defied to send innocent people to a Central American torture camp; the world’s richest man has deployed a gaggle of racist hackers to shut down government agencies on a whim; and, just as we were going to press, news broke that Harvard University has been barred from enrolling foreign students because of its refusal to hew to the president’s ideological demands.
But this stomach-churning agenda has also been mixed with the absurd. Trump has repeatedly insisted, for some incomprehensible reason, that the word “groceries” is “old-fashioned” and unfamiliar to people. He has shared a satirical video showing war-ravaged Gaza transformed into a MAGA amusement park. The Army Corps of Engineers randomly flooded farmland hundreds of miles away because Trump had some vague, cartoonish notion that it would help with the devastating wildfires in Los Angeles. The mad king behavior we might expect in a tinpot autocracy, the surreal insanity of an Idi Amin or Muammar Gaddafi, is now the reality of the United States government.
It’s easy to get bogged down in the mire of so many crazy and dangerous things happening at such a rapid pace—the “flood the zone with shit” tactic, as Steve Bannon memorably put it. It is important to resist the big picture being crowded out by the nearly impossible task of responding to each outrage individually and in isolation. And the big picture is we now have a federal executive, the most powerful official on the planet, acting on the firm belief that he is not constrained by the rule of law and determined to run roughshod over the other two branches of government.
America has been flung into a constitutional crisis in the most massive and fundamental way imaginable, ruled by a regime which is not merely doing unconstitutional things but is anti-constitutional at its very core.
“Crisis” is precisely the right word. This is not mere political disruption—it is a full-blown constitutional crisis in the proper, technical sense of the term. The normal rules of the system have been thrown into untenable contradictions where something has to break. The whole mechanism is disintegrating before our eyes. We stuck a wrench into its core by putting an anti-constitutionalist into its highest office, and now the broken gears are spewing left and right. What we will be left with is a government only superficially resembling the one codified in the Constitution.
The reality we face is grim, but not hopeless—yet. It will, however, be a political environment unlike any we have previously known. It will operate by different principles and mechanisms than the familiar model of a coherent system under the rule of law. The weeks, months, and years ahead will not just bring turmoil—they will challenge the basic premises holding America’s governing institutions together. Still, it will remain up to we, the people, to decide what comes next. At the end of the day, reasserting our constitutional foundations, and eventually reconstructing a stable system of law atop them, will depend on our ability to secure the imprimatur of raw popular sovereignty. America will have its say on the matter of its own undoing—though what should deeply worry us is that it is far from a given that it will choose to recover its constitutional legacy.
A Fractured Government: Power Without Rules
For most of its history, the government of the United States has conducted itself, however imperfectly, within its established constitutional framework. Presidents, legislators, and courts have at times stretched, manipulated, and even disregarded constitutional rules, but they have nearly always recognizably operated within the Constitution’s basic structures. Even at the height of the Civil War or during World War II, Congress continued to function, elections continued to be held, the courts continued to issue rulings. This governing framework, and the fragile cohesion it supplied, is no longer intact—and in its place is a model of governance where conflicts are resolved not by reference to the law, but the threat of force by those who wield power.
In our new reality, legal structures and procedures may persist on paper, but they will no longer guide the government’s actual operation. Rather than following a unified legal code, different branches and actors within the federal government, and between the states and the federal government, will engage in battles for power without guardrails.
For example, spurious federal charges against the mayor of Newark over a visit to an ICE detention facility were dropped not by the legal process but because of the public backlash. At the same time, similarly baseless charges against Rep. LaMonica McIver (D-N.J.) are still moving forward despite the flagrant unconstitutionality of prosecuting a member of Congress for exercising her official legislative oversight functions. In both cases, the administration is pushing for as far as it can get away with politically, unmoored from the normal rules and procedures for criminal prosecutions. The whole fiasco amounts to a previously unthinkable and unabashed politicization of the justice system.
The interaction of our various institutions will be disjointed and irregular, and in many cases will lead to unusual and unexpected outcomes. What matters in many cases will be which actors and institutions have the strongest popular backing and, with it, the most credible threat of superior force. The ultimate backstop, as always, is the social sanction which assigns legitimacy to those who wield the state’s monopoly on the use of force.
With no agreed-upon framework to mediate these contests, executive, legislative, judicial, and state-level actors will clash based on sheer political capital, not deference to a unified constitutional system defining their respective roles. These struggles won’t necessarily erupt into violence, a possibility still remote and hopefully to be avoided, but the threat of force will loom over every interaction. Each decision will hinge on the perception of popular support and legitimacy—who can muster more real or virtual mobs—rather than adherence to written constitutional law and settled constitutional norms.
A New Constitutional Order: No Simple Restoration
Once the rule of law has fractured to this degree, there is no easy return to the status quo ante. The pieces will no longer fit together. Whatever eventually replaces this crisis-ridden government will result in a new constitutional settlement, not a simple revival of what came before. We will find ourselves engaged in a kind of constitution-making arguably not seen since Reconstruction in the aftermath of the Civil War.
How this new order will take shape is impossible to predict, but it will almost certainly involve a radical reimagining of the presidency and executive power. The presidency may emerge from this period either significantly curtailed or drastically empowered in ways unimaginable from today’s vantage point. (We should strive for the former.)
In addition to reshaping the executive branch, the crisis will fundamentally alter the relationship between the federal and state governments. American federalism has always balanced power between these two levels of government, and at times deliberately altered that balance, but now it will be disrupted in unpredictable ways. As federal authority begins to wane and become erratic, states may invoke new or rarely used powers or, conversely, find themselves overwhelmed by novel federal incursions. We are already seeing this play out in the threats, retaliation, and attempted commandeering of state and local governments.
Some states may attempt to carve out new kinds of autonomy, shielding themselves from federal directives they perceive as illegitimate or unlawful. Others may find themselves under heightened federal scrutiny and interference, as the unchecked imperial presidency seeks to assert control. The states may emerge from this crisis either stronger or weaker, depending on how these conflicts play out.
The same is true of Congress as it faces new challenges to its constitutional prerogatives. Congress, in particular, is coming to the final fruition of its long slide into performative dysfunction. “We don’t have the ability to do anything other than complain,” Kentucky Republican Sen. Mitch McConnell recently observed in regards to Trump’s tariff chaos. It was a surreal statement from a member of Congress, the only entity empowered by the Constitution to levy taxes and regulate international commerce. But it typifies how Congress has become little more than a bystander to policymaking powers largely ceded to the executive. As with many longstanding weaknesses in our constitutional system, the sidelining of Congress is being taken to a new extreme.
The courts and the legal system also face threats previously unheard of. No administration in American history—not even Andrew Jackson over Indian removal, horrendous as that was, nor FDR during the New Deal, nor even Abraham Lincoln during the Civil War—has so openly threatened to outright defy the courts on such a massive scale, and in some cases has already done so. He and his subordinates have even gloated about it, in the Oval Office and in Cabinet meetings. For their part, faced with lawless actions on an unprecedented scale, judges have responded with similarly unprecedented orders that are sweeping in scope. It is not tenable for large chunks of the government to be running on, or in defiance of, temporary restraining orders and preliminary injunctions. And one of the most disturbing developments has been the attacks on the legal profession and the right to counsel through outrageously illegal orders retaliating against any law firms or lawyers Trump happens to dislike. It is difficult to imagine a more fundamental assault on the rule of law and the integrity of the legal system.
Power Conflicts and the Shattering of Government Authority
One of the most profound challenges in this new era could be that with government power splintered, we no longer get single, unified, and definitive results as sanctioned by the laws and Constitution. This may not result in full-blown anarchy or open warfare, but rather leveraging of force by popular will and informal social sanction rather than formal rules. In a stable democracy, the government’s legitimate use of force is guided by law, with clear boundaries that prevent abuses of power. However, in a fractured government experiencing a constitutional crisis, those boundaries blur. Power struggles between federal and state actors, and within the federal government itself, may lead to situations where the threat of force, and who can make it most credibly, becomes the ultimate arbiter.
The mere possibility of executive force against the legislature—already once deployed on Jan. 6, 2021 and subsequently normalized rather than repudiated—will cast a long shadow over intra-federal relations. The checks and balances designed to mediate these relationships through law will lose their effectiveness, and the equilibrium will be maintained, if at all, through coercive power dynamics that lie outside any formal legal structure.
As then-Utah Sen. Mitt Romney observed, the post-Jan. 6 Congress, operating under the threat of force and legitimately fearing for the personal safety of members and their families, has already been distorted and warped in numerous ways. That threat will no longer have just rogue private actors behind it; it will have the full weight and power of the executive branch. The mass pardon of criminals and violent extremist groups who already attacked Congress once underscores the point. So, too, do the unconstitutional threats to prosecute members of Congress for political speech and for carrying out their legislative functions.
In a unified constitutional system, legal questions are ultimately resolvable within a single framework, where the rule of law serves as a common reference point. Not because there are no disputes over the law, but because there are clear procedures for deciding those disputes. Legal conflicts will instead increasingly be settled by the perception of which faction can more convincingly claim to represent “the people.”
This breakdown of legal unity means conflicts which appear to have been resolved will often merely be temporary stalemates. One faction may back down to save face, not out of deference to law, but because they lack the popular support or coercive power to enforce their position. This can create a kind of apparent normalcy, a sense in which the contest has been resolved peacefully. But they will not have been resolved by the rule of law.
The Path Forward: Navigating a New Political Reality
In the face of this constitutional collapse, and the forging of a new constitutional settlement, we will need to recognize the terms on which future political battles will be fought. In a system where the coherent unity of the law has disintegrated, the true foundation of authority will be the ability to persuade and rally the public behind claims of legitimacy. The supreme court, so to speak, becomes the court of public opinion. Not through the constituent power of sanctioning an overall system of government, as our republican constitutionalism is supposed to work, but through the chaos of deciding day-to-day disputes.
In the long run, Americans will face a choice about what kind of government they wish to create from the wreckage of the old. Whichever path emerges, it will require an understanding of political legitimacy that transcends partisan battles. Future generations will not return to the old constitutional framework, but they may yet build a new foundation that upholds the spirit of democracy, fundamental rights, and liberal principles.
Or they may not. The future is not guaranteed; there is no iron law of progress, no arc of justice determined by anything outside of our own human action.
In the meantime, Americans must prepare for a period of uncertain, chaotic governance—a time when authority is no longer derived from constitutional structure but from the volatile balance of brute force and popular support. There will be no day when a switch is flipped and the pieces all fit back together as they used to. The future of our system of government is what we make of it.
© The UnPopulist, 2025
Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.
We welcome your reactions and replies. Please adhere to our comments policy.
 | A guest post by
|
Edward R. Murrow noted that, "The obscure we see eventually. The completely obvious, it seems, takes longer." So, it's refreshing to read this, a very candid, astute, convincing and compelling argument one that - unfortunately - isn't reflected in the NYT and other "mainstream media" analyses, opinion pieces and "reporting.". Rather, the endless parsing of "constitutional crisis" and the mindless pursuit of "balance" hides the obvious behind the obscure.
Unfortunately, what's lacking here is the "opposition party" plan for countering the onslaught of Trump. The damage has been done and there's no cogent, rational, pragmatic strategy - nor for that matter, a charismatic, dynamic leader - to present it to the public.
To sum up and as Walt Kelly wrote in 1970, "We have met the enemy and he is us." Bigley. Sad
Oh goody! Another light, upbeat, encouraging post about everyone’s favorite fascist. (Seriously, you do work that is both good and important. But these days, it’s also pretty depressing.)