The specter of a constitutional crisis has haunted more than one American presidency. From the Civil War to Bush v. Gore, moments of institutional stress have provoked warnings that the Constitution itself might be faltering. In recent years, that phrase — “constitutional crisis” — has become a staple of the national conversation, debated so often in op-eds, podcasts, and cable news segments that it risks becoming cliché. But what does a true constitutional crisis actually look like? And are we living through one now?
We asked three legal thinkers — each with a distinct worldview and constitutional philosophy — to wrestle with that question. Their answers are surprising, provocative and not uniform.
Former federal judge Thomas Griffith offers a deeply personal reading of the crisis. After decades working within the system — as Senate counsel, appellate judge and teacher — he’s come to see the Constitution’s most radical promise not in its checks and balances, but in its blueprint for unity. Griffith argues that the true constitutional emergency isn’t institutional overreach — it’s toxic polarization. And the framers, he believes, left us a roadmap out.
Ilya Shapiro, of the Manhattan Institute, challenges the premise altogether. What some interpret as crisis, he argues, may be the product of a hyperpolarized political culture now overlaying — and distorting — judicial interpretation.
Noah Feldman, a Harvard law professor and scholar of constitutional history, looks at the question through an unexpected lens: Latter-day Saint theology. He finds in that religious tradition not only a belief that the Constitution is divinely inspired, but a moral imperative to defend its protections for all flesh — citizen and noncitizen alike — especially in moments of strain.
Together, these essays don’t deliver a tidy answer. They offer something better: a serious and conflicting set of diagnoses from minds deeply immersed in the Constitution’s design and purpose. The result is a portrait of a system under pressure — and a debate about where we go from here.
In the framers we trust
By Thomas B. Griffith
I missed it. Although it was always right before me for decades, I totally missed the most important purpose of the Constitution.
I’ve been an eager student of the American Constitution since high school. I dutifully and happily carry my pocket copy of the Constitution with me wherever I go. Though not a scholar, I read what the best scholars of the Constitution have to teach us about this remarkable document. In my spare time, I listen to podcasts and read books and articles about the Constitution. In my legal career, I’ve been the chief lawyer for the United States Senate, a judge on the U.S. Court of Appeals for the D.C. Circuit, and currently am a lecturer in law at a law school. Each of these positions required that I study the Constitution.
And in my study, I had always assumed that the Constitution was created to protect our rights — and it does — and to create a federal government of enumerated and limited powers — and it does. But what I had not realized until recently is that an even more fundamental purpose of the Constitution and the chief aim of its drafters in 1787 is to show us something about which its framers cared deeply and should speak to us with great force today: how to get along with people with whom we disagree. In other words, the Constitution can show us how to get out of the mess we are in.
Add me to the list of those who argue that the nation is facing a constitutional crisis. In fact, the crisis I see is the most serious threat to the Constitution since the Civil War. But this crisis is not about the power of the president or the roles of Congress and the courts. It’s not about a threat to the freedom of speech, the free exercise of religion, or equality of opportunity. Those are vital principles and precious rights about which we must always be vigilant. The crisis that threatens the Constitution is the toxic political polarization that has beset the nation in recent years. Ironically, much of that polarization is driven by people who think that they are defending the Constitution, but who miss its primary purpose the way I had. When their zeal is fueled by contempt for those with whom they disagree, their words and actions become a threat to the Constitution.
Social science research supports what we have all experienced firsthand. Too much of our public discourse is animated by contempt. As Arthur Brooks notes, “Political scientists find that our nation is more polarized than it has been at any time since the Civil War.” Recent surveys show that the level of enmity between Republicans and Democrats in America today approaches the levels between Protestants and Catholics during the Troubles in Northern Ireland and between Palestinians and Israelis today. We aren’t accustomed to think of ourselves in that company, but here we are.
Over 70 percent of Republicans think that Democrats are “immoral.” Over 60 percent of Democrats think the same of Republicans. Such contempt is a cancer on the body politic. As the late conservative columnist Michael Gerson noted, “(The Constitution) is designed for vigorous disagreement. It is not designed for irreconcilable contempt.” The social psychologist Jonathan Haidt, not one prone to apocalyptic forecasts, predicts, “(T)here is a very good chance that ... we will have a catastrophic failure of our democracy.” The reason? “We just don’t know what a democracy looks like when you drain all trust out of the system.” Actually, we do know what that looks like: the January 6 storming of the Capitol.
But there is good news. A large majority of Americans are tired of this toxic polarization, and there is a way out. In fact, the Constitution itself and the way it was created provide a road map forward.
As Yuval Levin points out in his paradigm-shifting book, “American Covenant: How the Constitution Unified Our Nation — And Could Again” (the most important book on the Constitution I’ve ever read), the Constitution is an answer to the question of how the people of a nation as diverse as ours can act together even though we don’t think alike. The preamble to the Constitution announces its purpose is to “form a more perfect union.” The first third of the Federalist Papers are primarily about how the Constitution can help us achieve unity among people with differing views. “(C)reating common ground,” Levin notes, “is a key purpose of the Constitution. ... It does so by compelling Americans with different views and priorities to deal with one another — to compete, negotiate, and build coalitions in ways that drag us into common action even (indeed, especially) when we disagree.”
And this is done through the structure of the government the Constitution creates. The discussion during the Constitutional Convention in 1787 was primarily about the best structure of the government they were creating and how it might achieve national unity amid diversity. There was precious little discussion that summer about rights. (Fortunately, that would come four years later with the Bill of Rights, the first 10 amendments to the Constitution.)
Think for a moment about the structure of the national government the Constitution creates. It’s terribly complicated. Law is made by the common action of three different institutions — the House of Representatives, the Senate and the presidency — chosen by different groups of people at different times. Anyone who has worked for the passage of a bill will attest to how difficult it is for a proposal to run this gauntlet and become law. This system is not built for efficiency. It is built to slow down proposals in hopes that any law that emerges will be carefully considered and the result of negotiation and compromise among the elected representatives of “We the people.”
Absent the rare landslide election that sweeps into power a president whose party has large majorities in both houses of Congress, the only thing one wins in an election to the House, the Senate or the presidency is a seat at the negotiating table where you must bargain with others whose support you need. Of course that support comes at a cost. We call that compromise.
The Constitution requires a different type of citizen than had ever been seen before on the world stage. A citizen who is willing to listen to his or her opponents, understand their concerns, and then be willing to compromise so that, to the extent possible, the various sides can find some common ground. Each side will have to give up something — those in the minority more than the majority. But that’s the genius of the Constitution. As Levin puts it, this complex process of lawmaking “compels Americans to be a little more accommodating of one another. It gives us practical experience in living and acting together.”
The most succinct description I have heard of what the Constitution requires of a citizen comes from President Dallin H. Oaks. Oaks is not only a leader of The Church of Jesus Christ of Latter-day Saints, but he is also one of the most widely respected scholars of the Constitution, having been a state Supreme Court justice and a professor of law at the University of Chicago before taking on his ecclesiastical responsibilities. In remarks on the Constitution that he gave to a worldwide assembly of the church in April 2021, President Oaks declared that “on contested issues, we should seek to moderate and to unify.” In a speech given at the University of Virginia later that year, President Oaks explained that the structure of the government the Constitution created could only work if there was good faith negotiation and mutual accommodation among citizens of differing views. And as he told former federal judge and Dean Emeritus David Levi in an interview in Judicature, it is antithetical to the Constitution to “expect or seek total dominance for our own positions.”
A large majority of Americans are tired of this toxic polarization, and there is a way out. In fact, the Constitution itself and the way it was created provide a road map forward.
Significantly, this understanding of the purpose of the Constitution also describes the way it was created in the first instance at the Constitutional Convention in the summer of 1787. Those who created the government that requires good faith negotiation and mutual accommodation practiced what they preached.
By July 1787, it appeared that the work of the convention would fail. No agreement had been reached, and there was serious talk of delegates leaving for home. And yet by September, the delegates had cobbled together a Constitution. So unlikely was this turn of events that one popular history of the convention is titled “Miracle at Philadelphia.” I am a Christian, and I believe in miracles. But my understanding is that a miracle is an event that defies rational explanation, such as the parting of the waves during the exodus of the children of Israel from Egypt, or the resurrection of Jesus. By this definition, no miracle took place in the summer of 1787. We know exactly how the delegates succeeded because George Washington told us. In his letter transmitting the proposed Constitution to the Confederation Congress, Washington wrote, “The Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.” Amity, mutual deference, concession. The delegates in Philadelphia practiced these virtues for the sake of creating a “more perfect union.”
Legal scholar Derek Webb has done a deep dive into the proceedings of the Constitutional Convention to understand what Washington meant by amity, mutual deference and concession. The rules of the convention assumed that if you could gather together a group of people in the same room and have them listen to one another, they would change their minds, and that would be a very good thing. The delegates took their meals together in small groups that had people from South Carolina breaking bread with men from Massachusetts and discovering over time that they had more in common with one another than they had supposed.
And there was much socializing among the delegates that summer. At key points in the summer, when tensions among delegates were on the rise, Benjamin Franklin threw lavish parties for them at his home and brought out his fine stock of port wine, which was gleefully enjoyed by all. All of this — the rules, the dinners, the parties — created an atmosphere in which the delegates, in the words of George Mason, grew “into some acquaintance with each other” and formed “a proper correspondence of sentiments.” In other words, they became friends who were willing to engage in good faith negotiations and seek mutual accommodations for the sake of unity. But they didn’t reach unity out of the goodness of their hearts alone. They did so because their backs were against the wall. Failure to reach compromise would have posed an existential threat to the new nation. As Washington put it, “the peculiarities of our political situation rendered (this approach) indispensable.”
Is that where we are as a people today? I’m afraid so. That’s the bad news. But here’s the good news. We know how to overcome the toxic polarization that threatens our nation. It’s hard work, and it requires all of us to take to heart President Oaks’ charge, which is the charge of the Constitution itself, that “on contested issues, we should seek to moderate and to unify.”
Thomas B. Griffith was appointed to the United States Court of Appeals for the D.C. Circuit by President George W. Bush in 2005. He retired from the D.C. Circuit in 2020 and is currently a lecturer at Harvard law school and a fellow at the Wheatley Institute at Brigham Young University.
A clash of visions
By Ilya Shapiro
We didn’t get very far into the second Trump administration before political commentators started wringing their hands about this or that “constitutional crisis” that we’d stumbled into. Pundits took to the airwaves to allege that letting Elon Musk wreak havoc over federal agencies was the end of the republic, while law professors took to the op-ed pages to explain how the lack of due process in the administration’s deportation policy signaled our slide toward authoritarianism. And then ... the laptop class moved on to worrying about their 401(k)s in the face of tariff uncertainty and the political class to squabbling over the budget bill.
So were the crises averted? Did we survive to engage in our tribal fights another day, or is the danger still roiling in the background as the nation teeters on a precipice, metaphorically approaching midnight like a Doomsday Clock for the rule of law?
The answer depends on what you mean by all these weighty terms. A constitutional crisis is generally thought of as a problem in governmental operations or conflict between branches of power that a country’s foundational law is unable to resolve. Such a crisis can arise when the constitution fails, or is perceived as approaching failure, to give guidance to political actors regarding a contested situation — or those actors simply ignore it.
Sometimes constitutional mechanisms lead to political instability or other circumstances that lead political actors to contest each other’s legitimacy. Such was the case when the 1796 election resulted in a president (John Adams) and vice president (Thomas Jefferson) from different parties, and when Jefferson and his running mate Aaron Burr got the same number of electoral college votes in 1800. The rules were clear, but endangered stable governance, so the 12th Amendment was enacted to separate electoral votes for president and vice president.
At other times, the Constitution is legally ambiguous about an unforeseen circumstance, so a practical resolution — what law professors call “liquidation” — sets the precedent for averting future crises. For example, in 1841, it was unclear when William Henry Harrison died 31 days into his presidency whether John Tyler actually succeeded him or just became “acting president.” Tyler took the oath of office and thus settled the matter. (Tyler was politically enfeebled during his term because he lacked a base of support in either party in Congress — he was called “His Accidency” — but that’s a quirk of that era’s partisan flux and not any constitutional weakness.)
A constitutional crisis could lead to governmental paralysis or collapse, democratic backsliding or even civil war. Indeed, by far the greatest crisis the United States ever faced involved Southern states’ rejection of Abraham Lincoln’s policies against the expansion of slavery, instead choosing to secede. Lincoln in turn refused to recognize the breakaway republic and brought the Confederate states back into the union by bloody force. One hopes that we’ll never have to test that “resolution” of the Constitution’s silence regarding secession.
But constitutional crises don’t have to rise to the level of Ken Burns documentaries. It’s not hard to conjure scenarios about which the Constitution would be ambiguous at best, or which opportunistic politicians would take advantage of to create doubts about the legitimacy of their rivals. Michigan State law professor Brian Kalt wrote a book in 2012 that lays out half a dozen hypothetical crises. “Constitutional Cliffhangers” discusses complications that could arise from:
- A president being criminally prosecuted.
- A president pardoning himself.
- Cabinet members trying to oust a “disabled” president, who then tries to oust them.
- The House speaker and secretary of state fighting for the presidency in the wake of the deaths of the president and vice president.
- An ex-president being impeached.
- A two-term president trying to stay in power.
Some of these don’t sound so fanciful after the political twists and turns of the last couple of decades, really dating back to Bush v. Gore in 2000, which wasn’t so much a crisis as a statistical tie for one state’s electors. But they all involve the office of the presidency rather than how the holder of that office wields his power. Those complaining about President Donald Trump don’t dispute his claim on the White House — this time around — but do accuse him of abusing his powers to the point of governing like the king who forced the hand of the founding generation to declare independence. One could certainly call the American Revolution a product of crisis in the British (unwritten) constitution.
After all, the argument goes, firing agency heads, shuttering USAID, withholding funds that Congress appropriated, reversing environmental regulations by fiat, targeting law firms whose lawyers represent political adversaries, and putting the nation’s leading universities into federal receivership at the stroke of a hostile letter are all examples of an executive acting without any respect for legal or constitutional processes. Add in such things as unilaterally defining terms like “woman” and “gender” across the federal government — plus rescinding not just Biden or Obama executive orders on DEI (diversity, equity, and inclusion), but LBJ’s order on affirmative action — and you have, on this view, a president acting like the dictator he once mused himself to be.
The funny thing about all these examples is that institutional guardrails have held, just as they did in Trump’s first term with regard to the “travel ban” and other things that led to cries of constitutional crisis. Dozens of lawsuits have been filed on a host of issues, with injunctions against some actions and the administration ultimately winning its fair share of rulings. Some of these issues pose open or at least contested legal questions. For example, it’s likely that next year the Supreme Court will overturn Humphrey’s Executor, the 1935 case that insulates the heads of “independent” agencies from presidential control. Other issues are just a manifestation of the “pen and phone” governance patterned by President Barack Obama, which accelerated the shift to our current populist moment. You live by the executive order, you die by the executive order.
Moreover, as singular an individual as Donald Trump may be, he’s not unique when it comes to pushing the envelope of executive power. President Joe Biden was judicially slapped down on issues ranging from vaccination mandates and eviction moratoria to environmental rules and student loan forgiveness — and even after the Supreme Court blocked his student loan plan, he kept trying to do the same thing using other statutory workarounds. Biden also, a few days before the end of his term, issued a bizarre declaration that the Equal Rights Amendment had been ratified, which the National Archives promptly rejected.
What we have isn’t so much a constitutional crisis but legal manifestations of the political-cultural “vibe shift” we’ve been talking about since last November’s election.
There may be two novel examples of blatant Trumpian disregard for the constitutional order, but they don’t fit the crisis narrative because of their heterodox ideological valences. I’m thinking of the unilateral pausing of bipartisan legislation requiring the Chinese company ByteDance to divest itself of TikTok — which law survived Supreme Court review — and the “emergency” tariffs levied on the entire world. But even here, presidents of both parties have used the awesome tariff power that Congress delegated to them, with the judiciary’s acquiescence. So all of our constitutional branches seem complicit, but none of that threatens to destabilize the republic (as opposed to our economy) or lead to a cold civil war.
But what about more blatant disregard to the rule of law, such as the treatment of judicial orders regarding the deportation of Kilmar Armando Abrego Garcia or the use of the Alien Enemies Act to deport alleged Venezuelan gang members, or the revocation of hundreds of student visas over speech that the administration doesn’t like? Each of these examples is also legally contestable. For example, can a court order the president or his agents to engage in diplomacy, even if it wouldn’t be a big lift? Is it showing contempt to argue that a district court lacks jurisdiction when the Supreme Court ultimately agrees that habeas corpus claims must be filed where detainees are held? Can the United States not apply the rules regarding the visa ineligibility of foreigners who espouse certain disqualifying ideologies when those foreigners are already in the country?
Sure, it isn’t helpful to our political culture for a president and members of his administration to show disdain for or call for the impeachment of judges who rule against them. And the coy “after you, my dear Alphonse” dance performed by Trump and Salvadoran President Nayib Bukele in the Oval Office thumbed its nose at the spirit, if not the letter, of the order requiring the government to “facilitate” Garcia’s return. But there’s been nothing like Andrew Jackson’s exclamation, “John Marshall has made his decision; now let him enforce it!” — which even if apocryphal reflected Old Hickory’s opinion of judicial authority. And how do you weigh Trump’s behavior against attacks on the Supreme Court by the Biden administration — leading both the president and Vice President Kamala Harris to endorse court-packing — and Senate Minority Leader Chuck Schumer’s threats against two justices if they ruled the wrong way on abortion? Or, more recently, Democratic lawmakers’ storming of an Immigration and Customs Enforcement facility and then claiming their arrests were somehow illegitimate?
“They’re all bad” is a fair response, but “bad” does not a crisis make. A lot of what’s going on in the courts, for example, is procedural skirmishes over the proper scope and appealability of temporary restraining orders, or the propriety of nationwide or “universal” injunctions. The Supreme Court has been remiss in not giving lower courts more guidance on these technical issues — Chief Justice John Roberts’ project to keep the court out of the political discourse has backfired repeatedly — so it was heartening to see it take up the injunction issue, with a decision expected by the end of its current term in June or early July. (That argument was in the context of Trump’s executive order eliminating birthright citizenship for children of people here temporarily or illegally. At least one law professor who worked in the Biden Justice Department has called that order a constitutional crisis in and of itself, but even as the longstanding practice to the contrary is clear, the meaning of the 14th Amendment isn’t.)
In short, what we have isn’t so much a constitutional crisis but legal manifestations of the political-cultural “vibe shift” we’ve been talking about since last November’s election. Courts are still more respected than any other part of government at a time of historically low societal trust, and confidence in the Supreme Court is still high relative to its coequal branches, but that’s despite the historically large difference in opinion by partisanship or ideology.
It’s apparent that Americans — especially American elites — have conflicting constitutional visions, and what we’ve seen lately is the confluence of trends where divergent interpretive theories map onto partisan preference at a time when the parties are more polarized and ideologically sorted than any time since at least the Civil War. There’s no easy way to “liquidate” those kinds of differences.
Ilya Shapiro is director of constitutional studies at the Manhattan Institute and author, most recently, of “Lawless: The Miseducation of America’s Elites.” He also writes the Shapiro’s Gavel newsletter on Substack.
The Constitution needs believers
By Noah Feldman
Among the many fascinating and rich beliefs of The Church of Jesus Christ of Latter-day Saints, I have always been especially engaged by the teaching that the U.S. Constitution is divinely inspired. Perhaps this is because I am, by profession, a teacher of constitutional law. For someone who has dedicated much of his life to studying the Constitution, there is something hopeful in the belief that it is part of a divine plan. When our constitutional traditions and values seem to be faltering, or when they face especially difficult tests and challenges, a degree of faith in the underlying endeavor of constitutional democracy can be particularly valuable.
This is one of those times. Since his inauguration, President Donald J. Trump, sworn to uphold the Constitution, has repeatedly taken unilateral executive actions that federal courts have determined to violate the letter and spirit of our foundational document and the laws duly enacted pursuant to it. These range from violations of the individual rights of people in the United States to violations of the separation of powers to violations of the rule of law, the underlying principle of the Constitution itself.
To be clear: This is not normal. The challenge to the Constitution, its norms and its values that we are currently facing is without precedent. Many presidents have occasionally taken actions reversed by the courts as unconstitutional. Congress has very occasionally passed laws that were struck down on constitutional grounds. But no previous president has acted similarly, taking scores of actions in a short period of time that, in the estimation of the courts, directly violated the Constitution and the laws.
The question therefore arises: What is the appropriate response to unprecedented challenge to constitutional norms at the highest level of the U.S. government? At the legal level, the answer is relatively simple. Affected parties can and should go to court to vindicate not only their rights, but the Constitution and the rule of law that it embodies. Courts should hear those claims, consider them in the light of the Constitution as it has been interpreted by the Supreme Court, and rule accordingly. Then, all citizens must stand up for the Constitution as interpreted by the courts, insisting that the president and other executive branch officials comply with lawful court orders.
What, though, is the right moral answer to the question of how to respond to unconstitutional conduct and attitudes? To address this question, which is more profound than the legal one, we need to understand the moral basis for the Constitution and its values.
In my view, there is no single moral theory of the Constitution that can be identified as definitively correct — at least in constitutional terms. Even if one believes in a single, unified, true morality, applying it to the Constitution will still be a matter of interpretation in which disagreement between reasonable people of goodwill is still possible.
I have long been intrigued by one such interpretation, of one moral vision of constitutional purpose, expressed in terms of and grounded in Latter-day Saint doctrine and teaching. That interpretation begins with a universalist, inclusive ethic of constitutional purpose, as opposed to a narrow, nationalist one focused only on U.S. citizens and their interests. From there, it proceeds to the principles of judicial independence and the rule of law, conceived as necessary instruments for facilitating the universal vision.
This vision should be of interest not only to Latter-day Saint believers, but to people like me who do not belong to the faith, but who are committed to constitutional values and want our Constitution to have good moral reasons to exist and to survive.
A good place to start is an important address delivered in April 2021 by President Dallin H. Oaks, first counselor in the First Presidency of the church, delivered during its semiannual general conference under the title “Defending Our Divinely Inspired Constitution.”
First, a quick disclaimer: It is always tricky for someone who is not an adherent of a particular faith tradition to explicate a profoundly religious text. I offer my interpretation and application of President Oaks’ teaching in humility and respect for President Oaks and for the church, noting the obvious truth that I can in no way claim my reading is a faithful one, but can only pray that I have captured something of the spirit that, to my mind at least, permeates the speech.
In presenting the idea of the divinely inspired Constitution, President Oaks focuses not on Doctrine and Covenants 101:80, a very clear and direct statement of the Constitution’s divine inspiration, but another Latter-day Saint scripture (D&C 101:77), which refers to “the laws and constitution of the people, which I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles.”
Here I want to emphasize a remarkable aspect of this verse: its universality. God says he intends the Constitution to protect “all flesh” — not just Americans or citizens of the United States. The resonant phrase “all flesh” is the biblical language most often used to invoke all humanity, regardless of belonging or membership. Consider, for example, Isaiah 66:23: “And it shall come to pass, that every new moon, and every sabbath, shall all flesh come to worship before me, says the Lord.” In Isaiah’s prophetic vision, just one verse after God has promised to make “the new heavens and the new earth,” all humans shall be united as one in the worship of the Lord.
What does this mean in our current moment? It means, I would like to propose, that our Constitution does not simply protect U.S. citizens. It protects “all flesh” who live under its jurisdiction. That decisively includes noncitizens present in the United States — who themselves have long been held to possess fundamental constitutional rights.
This is a very particular moral reading of the Constitution — one that is universalist and inclusive. It is by no means the only way to read the text or the traditions of the Constitution. The notorious Dred Scott decision excluded people of African descent from “We the people,” and was overturned only by the Civil War and the Reconstruction amendments. In a 1990 decision, U.S. v. Verdugo-Urquidez, then-Chief Justice William Rehnquist suggested in nonbinding dicta that perhaps constitutional rights afforded to “the people” might not extend to noncitizens in the U.S.
Yet the 14th Amendment specifies that its protections extend to everyone who is a “person.” Thus, rights to life, liberty and property under the 14th Amendment have been held to apply to noncitizens in the United States. Similarly, in 1945, in the case of Bridges v. Wixon, the Supreme Court held that “Freedom of speech and of the press is accorded aliens residing in this country.”
It is beyond the purview of this essay to address technical issues of when and how fundamental rights protections under the Constitution apply to noncitizens. It should suffice to observe that D&C 101:77, as invoked by President Oaks, offers moral justification for the constitutional idea that all humans under the jurisdiction of the United States deserve protection. Views to the contrary are, I think, inconsistent with the moral vision of a Constitution.
The lesson is strikingly relevant. Constitutional protection of noncitizens has become an important and controversial topic under the Trump administration. Noncitizens have repeatedly been the targets of executive action, especially summary deportation without a hearing, that have been challenged as unlawful in the federal courts and found to be unlawful. A morally universal, inclusive Constitution requires, I believe, a deep commitment to protecting all people, not only citizens.
From the universal moral principle, we can move on to the means of effectuating it. In his speech, President Oaks named “five divinely inspired principles.” These are, in brief, (1) popular sovereignty, (2) federalism, (3) the separation of powers, (4) the fundamental protections of the Bill of Rights, and (5) the Constitution as the embodiment of the rule of law, not of men.
I find it noteworthy that President Oaks considers the separation of powers to be a divinely inspired aspect of the Constitution. As he notes, “the inspiration in the American convention was to delegate independent executive, legislative, and judicial powers so these three branches could exercise checks upon one another.”
It is through our actions that we will preserve our constitutional republic, or, heaven forbid, lose it.
The argument here is powerful and original: According to President Oaks, the contribution of American constitutional thought on the separation of powers is the idea of the independence of the different branches. That independence, according to this view, enables the branches to check one another.
Make no mistake, the independence of the judicial branch is under genuine threat today. Repeatedly, the current presidential administration has either violated judicial orders (according to the federal courts) or come so close to doing so that judicial independence is threatened. At one point, the current president, posting on social media, called for the impeachment and removal of a federal district court judge who had issued a temporary restraining order adverse to the administration’s policy. In response, Chief Justice John Roberts issued a rare public statement explaining that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” Roberts, who cares deeply about preserving the independence of the judiciary, understood the president’s statement as seeking to intimidate the judiciary, thus undermining its independence.
Last, and perhaps most important, President Oaks argues for the divine inspiration of the core constitutional principle that “we are to be governed by law and not by individuals.”
As President Oaks explains, since ours is a government of laws, “our loyalty is to the Constitution and its principles and processes, not to any office holder.” Whatever any president, including President Trump, may say, government employees and we the citizens ourselves do not owe fealty to the president. Our responsibilities and our oaths run to the Constitution, which is itself the supreme law of the land. This principle, alongside the principle that “all persons are to be equal before the law,” President Oaks writes, comes to “block the autocratic ambitions that have corrupted democracy in some countries.”
This point could hardly be more important for current constitutional conditions. The rule of law, which itself depends in practice on the independence of the different branches of government, exists to protect our freedoms against the power of any one person. The rule of law is intended to block “autocratic ambitions.” The complex of five constitutional values identified by President Oaks as divinely inspired together serve the underlying purpose of the Constitution identified in D&C 101:77, namely the protection of the freedoms of “all flesh.”
Of course, one may accept all President Oaks’ arguments as a matter of political theory and constitutional principle without also embracing his belief, or the church’s doctrine, that the Constitution is divinely inspired. Such belief is, like other religious belief, very much a matter of personal faith and of the individual’s relationship to the concept of divine inspiration itself. As someone who is not a Latter-day Saint, I have no intention to encourage readers to adopt religious beliefs that they do not already have.
At the same time, I have engaged in the foregoing exegesis of Doctrine and Covenants 101:77 and of President Oaks’ message because I believe, with full faith, that today our Constitution needs all the commitment and assistance it can get. The Constitution today requires support from all sources, human and divine.
It is through our actions that we will preserve our constitutional republic, or, heaven forbid, lose it. Our fallible human agency means that the decision is in our own hands, as the establishment of the Constitution was in the hands of the framers who created the original compact and the all-important amendments that fulfill its promise by protecting liberty and equality. May we be worthy successors to those who came before us. May we leave to our posterity a Constitution that is worthy of the high aspirations we are bidden to fulfill.
Noah Feldman is Felix Frankfurter Professor of Law, chair of the Society of Fellows, and founding director of the Julis-Rabinowitz Program on Jewish and Israeli Law, all at Harvard University.
This story appears in the July/August 2025 issue of DeseretMagazine. Learn more about how to subscribe.