As a former federal judge who remains active in public life, I have been asked many times of late whether I think that our republic is in the midst of a constitutional crisis.
I believe we are.
In fact, I believe that the Constitution is “hanging by a thread,” to use a phrase well known in Utah.
But I don’t think the crisis is from the muscular assertion of executive power or a dysfunctional Congress, both playing out before our eyes, even though I have deep concerns about these worrisome developments.
Earlier in my career, I was the nonpartisan chief legal officer of the U.S. Senate — an institution I care about — and I worry a great deal about the separation of powers.
It’s vitally important that the legislative, executive and judicial branches stay in their respective lanes. But the Chief Justice John Roberts Supreme Court cares deeply about the separation of powers, and I’m confident that the justices will protect that hallmark of the Constitution, which Justice Antonin Scalia taught was its most important feature in protecting our liberty.
In my view, a far greater danger to the Constitution is the toxic polarization that is dividing our people. Social science research shows that we have not been so divided as a people since the Civil War. What is uniquely troubling about this divide is that arguments about ideas — a sign of a healthy democracy — have been largely replaced by contempt for those with whom we disagree.
Large majorities of Republicans think that Democrats are immoral and evil. Large majorities of Democrats think the same about Republicans. A recent Pew survey found that the United States is the only nation in the world where a majority of its people believe that most of their fellow citizens are bad people. What happened to Abraham Lincoln’s eloquent plea? “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.”
What is uniquely troubling about this divide is that arguments about ideas — a sign of a healthy democracy — have been largely replaced by contempt for those with whom we disagree.
The Constitution cannot survive this animosity. As the late Michael Gerson observed, “The Constitution is designed for vigorous disagreement. It is not designed for irreconcilable contempt.”
I have been a student of the Constitution for all of my adult life. I carry a pocket copy with me. I’ve read the best scholarship and have built a career on its foundations as the chief lawyer for the U.S. Senate, a federal appeals court judge and now as a lecturer on law. I have always believed that the most important purposes of the Constitution were to protect our rights and to create a structure of government that would do so as well.
And those are important objectives. But I missed something about the Constitution that is even more fundamental. I only noticed this when Yuval Levin pointed it out in his masterful recent book on the Constitution, “American Covenant: How the Constitution Unified Our Nation and Could Again.”
At its most fundamental level and in keeping with its highest purpose, the Constitution creates a structure of government that shows us how to act together even though we don’t think alike. “Creating 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.”
Levin notes that, absent the rare landslide election that sweeps into power a president whose party has large majorities in both houses of Congress, the only thing won in an election is a seat at the negotiating table, where we must bargain with others whose support we need. That support comes at a cost.
We call that compromise.
The U.S. Constitution requires a different type of citizen than had been seen before its inception: a citizen who is willing to listen to his or her opponents, understand their concerns, and then be willing to compromise so that the competing sides can find some common ground. Each side will have to give up something — those in the minority more than those in the majority. But that’s the genius of the Constitution. As Levin puts it, the complex process of lawmaking set forth in the Constitution “compels Americans to be a little more accommodating of one another. It gives us practical experience in living and acting together.”
Those were the views of the Framers who created the Constitution in the summer of 1787. Explaining how the delegates to the Constitutional Convention succeeded in the face of seemingly insurmountable obstacles that nearly ended their project in failure, George Washington wrote, “This Constitution is the result of a spirit of amity and of that mutual deference and concession which the peculiarities of our political circumstances rendered indispensable.”
Amity. Mutual deference. Concession. These are the virtues that created the Constitution. They are the virtues needed to keep it vibrant.
Last fall, Arthur Brooks made a stunning statement while visiting Utah in the wake of the assassination of Charlie Kirk. “I strongly believe,” Brooks said, “that God has called this state to renew America.” I don’t know all that Brooks had in mind with that declaration, but may I venture my own views about how Utah might do that?
First, the governor of Utah, Spencer J. Cox, has been teaching the nation what Abraham Lincoln taught — that we won’t be able to preserve the Constitution and the Republic it created unless we stop treating our fellow citizens as enemies and see them instead as friends. Friends who may have very different views, but who should be treated with dignity and respect.
Lincoln reportedly said, “I don’t like that man. I need to get to know him better.” There is no more powerful and eloquent voice in our nation today about the dangers of toxic polarization and how to keep it from destroying the Constitution than your governor. You may quarrel with him over this issue or that — and in America, we should do that — but I hope you don’t miss the forest for the trees. He is showing the nation what we must do to keep alive the dream of the Framers of the Constitution that we can “create a more perfect union.”
Second, as a person of faith, I don’t believe it’s a coincidence that President Dallin H. Oaks has recently been called to lead the church headquartered in Utah and which has such a large influence on life in this state. President Oaks also happens to be one of the most widely respected scholars of the Constitution, having been a state Supreme Court justice and a tenured professor of law at the University of Chicago — one of the nation’s most important law schools — before taking on his ecclesiastical responsibilities.
In recent years, President Oaks has given us some of the most profound insights I have ever encountered about what is required of us if we are to carry out our sacred obligation to “support and defend” the Constitution.
By the way, many others from across the nation and across the political spectrum have noted what he has been saying and see in those teachings the best way — perhaps the only way — forward. In the April 2021 general conference of The Church of Jesus Christ of Latter-day Saints, President Oaks declared: “On contested issues, we should seek to moderate and to unify.” That is the template by which to measure our involvement in public life. When we follow that template, we are supporting and defending the Constitution. When we depart from that template, we are undermining the Constitution.
In a speech given later that year at the University of Virginia, President Oaks explained that the structure of the government the Constitution created could work only if there was good-faith negotiation and mutual accommodation among citizens of differing views. And as he stated more recently in an interview in Judicature, the nation’s leading journal for judges, it is antithetical to the Constitution to “expect or seek total dominance for our own positions.”
President Oaks’ insights, if followed, would push back against the toxic polarization that is a cancer on the body politic. They would help renew America.
Finally, something has changed in our political life that poses, I believe, yet another existential threat to the Constitution. I’ll deal with it only briefly. What happened to the conservative mantra that “character counts” in our political leaders? I remember the day when conservatives like me opposed Bill Clinton even though he supported policies we liked: religious liberty, a balanced budget, welfare reform, a strong crime bill, free trade.
What happened to the conservative mantra that “character counts” in our political leaders?
The policies aren’t as important, we said, as the character of our leaders. What happened to that way of thinking? It seems to have been replaced by a sense that, so long as the economy is strong, the character of our leaders doesn’t really matter.
Don’t misunderstand me. A strong economy is vital. The people who benefit most from a strong economy are those on the first rung of life’s ladder, and, as the conservative former governor of Indiana Mitch Daniels constantly taught, how to help them climb is always our first thought. But must we give up on caring about the character of our leaders in order to grow the GNP? Why can’t we demand both?
Remember how Ronald Reagan would drive liberals crazy by quoting some of their icons in support of a point he was making? He would quote FDR, Truman and JFK.
I’m going to take a trick out of the Gipper’s playbook and finish by quoting from a speech given by Sen. Robert F. Kennedy when he ran for the presidency in 1968. I can’t think of a more eloquent explanation of what conservatism once was and I hope will become again than these words:
There is another greater task. It is to confront the poverty of satisfaction, purpose, and dignity that afflicts us all. Too much and for too long, we seemed to have surrendered personal excellence and community values in the mere accumulation of material things ...
Yet the gross national product does not allow for the health of our children, the quality of their education or the joy of their play. It does not include the beauty of our poetry or the strength of our marriages, the intelligence of our public debate or the integrity of our public officials.
It measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to our country. It measures everything, in short, except that which makes life worthwhile. And it can tell us everything about America except why we are proud that we are Americans.
May God bless you, and may God bless the United States of America.
This message was first shared by Thomas B. Griffith after receiving the George Sutherland Award at the Sutherland Institute 30th anniversary awards dinner on Nov. 7, 2025, in Salt Lake City.