Next month, Americans mark the 250th anniversary of the Declaration of Independence from the British Empire. Although the present US Constitution was written in 1787, ratified in 1788, and first implemented in 1789, during the anniversary celebrations this summer we can expect to hear widespread encomia to the genius of the Constitution as well as of the eloquence of Thomas Jefferson’s preamble to the declaration.

Don’t believe it. While it was a milestone for its era, the US Constitution is deeply flawed. The most successful contemporary democracies have learned from America’s mistakes in designing their own, more recent national constitutions. Pious American patriots sometimes say that “the Founders built better than they knew.” In reality, the Founders botched the job.

Consider two current controversies, over President Trump’s demolition of the East Wing of the White House to build an official ballroom; and the Supreme Court’s involvement in partisan congressional redistricting in Virginia. In a country with a well-written constitution, neither would be a subject of controversy, because lines of authority would be well-delineated and unambiguous.

Can a president of the United States, a temporary occupant of the executive mansion, command upon a whim that much of it be demolished and rebuilt, on the basis of a design he alone has approved, with private, rather than public, funding? Surely, this is the kind of technical question that a well-written constitution would clarify. Congress authorized and funded the last extensive renovation of the White House under President Harry Truman, and under laws passed by Congress, major renovations are supposed to be reviewed and authorized in advance by the National Capital Planning Commission, or NCPC, and other agencies.

But Trump ordered the demolition of much of the White House before he sought approval from the NCPC, which he obtained only later, after a federal judge intervened to block construction and after he had stacked the commission with loyal appointees. The attempt of Trump’s Republican allies in Congress to belatedly fund the ongoing destruction has run afoul of parliamentary rules that govern what can be included in a funding bill under the procedure of budget reconciliation.

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Confessions of a Heritage American

By michael lind

Either the Constitution allows a current president to unilaterally reshape the buildings and landscape of Washington, DC, on his own authority — or it doesn’t. If Trump does have the constitutional authority to destroy a third of the White House on his own initiative, can a future President Gavin Newsom or Kamala Harris demolish the Washington Monument and replace it?

Progressive Democrats as well as Right-wing Republicans make extreme claims about the location of authority under the Constitution — when it suits them. After Virginian voters, in a referendum on April 21, approved a plan by Virginia Democrats to gerrymander or rig congressional districts to lock in a Democratic majority in the state’s delegation to the US House of Representatives, the state’s high court struck down the measure as illegal because it didn’t follow proper procedures to amend the state constitution. The federal Supreme Court unanimously refused to review and possibly overturn the Virginia state supreme court’s decision.

Each of these cases illustrates a major design defect of the American federal constitution: the separation of powers, in the case of the White House ballroom; and America’s unique system of federalism, in the case of the Virginia gerrymandering case.

The Founders, bless their hearts, believed in the quaint 18th-century theory that safeguarding democracy and civil liberty required that executive, legislative, and judicial powers be allocated to different, independent, co-equal government branches. The theory was mistaken. We know it was mistaken because Britain and the other major English-speaking countries — Canada, Australia, and New Zealand — all have parliamentary systems, in which executive powers are wielded by the prime minister, a member of the legislature, with the British monarch serving as a ceremonial figurehead.

If the Founders had been right about the separation of powers, then Britain, Canada, Australia, and New Zealand should be undemocratic, illiberal regimes dominated by an all-powerful legislative dictatorship. Indeed, in defiance of the theory of the American founding, most other democracies in the world today have parliamentary or hybrid systems, rather than American-style presidential systems based on the separation of powers. The Founders, though undoubtedly great practical statesmen, were wrong on this fundamental point.

To make matters worse, as the political scientist Juan Linz argued, liberty and democracy tend to be in greater danger in presidential systems, rather than in parliamentary systems. The reason is that the separately elected president can claim equal authority with the legislature, and in a constitutional deadlock, he or she is more likely to command the loyalty of the armed forces and internal security services. Conversely, the only way that a legislature in a presidential system can remove an independently elected president is impeachment.

In a parliamentary system, prime ministers can fall from power when their parliamentary party or coalition loses the majority. And between elections, they can be dumped by their fellow legislators, with a vote of no confidence or similar measure, whereupon they once again become mere ordinary members of parliament, if they do not resign from politics. Just ask Keir Starmer. This model renders impeachments of prime ministers unnecessary.

The separation of powers in presidential systems, then, is more likely to cause breakdowns of democracy than to prevent them. On Jan. 6, 2021, after Trump falsely claimed that the election had been stolen by Joe Biden, MAGA supporters seeking to thwart the ratification of the Electoral College results ransacked the US Capitol and forced members of Congress to flee to safety. On Jan. 8, 2023, after another Right-wing populist, Jair Bolsonaro, lost the presidency of Brazil to Luiz Inacio Lula da Silva, supporters of Bolsonaro broke into and damaged the Brazilian presidential palace, the legislative chambers, and the high court, in the part of the capital of Brasilia known as — what else? — the Plaza of the Three Powers.

In contrast, when the party of another right-wing Populist, Viktor Orbán, was reduced to a minority in the Hungarian parliament on April 10 of this year, Orban graciously resigned as prime minister. In Hungary’s parliamentary system, he had no alternative. He could not claim to be the sole tribune of the Hungarian people, as he had never been directly elected, only chosen by his party when it held a legislative majority.

To be sure, there have been prime ministers who have become dictators in effect, like India’s Indira Gandhi, who ruled by authoritarian methods during the 21-month emergency of 1975-1977. But in 1977, Gandhi lost her own seat in parliament in an electoral backlash only to be re-elected and serve as prime minister again from 1980 to 1984.

In Turkey, Recep Tayyip Erdogan, prime minister from 2003 to 2014, was able to deepen his authoritarian rule only after he became president under a new Turkish constitution that converted Turkey’s parliamentary system to a presidential system.  Thanks, American Founders!

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By Glenn Loury

American-style presidentialism, then, in other countries as well as the United States, encourages power grabs by chief executives, checked only by impeachments by the legislature and judicial rulings that a president might ignore (“John Marshall has made his decision,” as Andrew Jackson famously said when the high court displeased him, “now let him enforce it!”).

While the separation of powers is a constitutional crisis waiting to happen, the federal system inherited from America’s wise and enlightened Founders is simply a mess. Under the constitution of 1787, the authority of the states and their citizens is supposed to be protected from the federal government by two methods — a clear division of authority between state and federal governments, and the representation of the states as distinct corporate bodies, each with two Senators who initially were chosen by state legislatures. Since the founding, both of these parts of the American constitution have broken down.

Instead of a clear-cut allocation of different responsibilities to state and federal governments in a two-layer cake, we have something like a Streusel swirl, in which federal, state, and local authorities in particular areas are blended and intertwined. Much of the blending is the result of federal funding of state and local programs, including hybrid federal-state programs like Medicaid. The federal Department of Transportation, for example, pays in part for local bike trails and pedestrian walkways, in addition to federal interstate highways.

The reason is simple. When advocates for a policy can’t win at the level of the city council or state legislature, they often find allies in Congress to fund or mandate their favored program, federalism be damned. Interest groups on the Right as well the Left are willing to shop among levels of government until they find one that will do what they want. In the name of states’ rights, anti-abortion conservatives demanded that the Supreme Court return abortion policy to the states, and succeeded when  the Court repealed Roe v. Wade in 2022. Meanwhile, pressured by deep-pocketed tech investors, the Trump administration has sought a federal ban on state regulation of AI. When it comes to federalism in the United States, the working theory of both parties and all factions is that whatever level of government they and their allies control has the authority to carry out the policy they want.

The second protection for the states built into the US Constitution — the election of two senators from every state — lost its purpose long ago. Originally, US senators were elected by state legislatures, on the theory that they represented states as political entities. But the 17th Amendment in 1913 wrecked the structure by requiring that US senators, like representatives, be elected directly by citizens.

But while congressional districts that send representatives to the House are revised after every census, reflecting population growth and sometimes partisan gerrymandering, the rule that each state has two senators, regardless of its population, is part of America’s defective constitution and can’t be altered. The result is that the Senate is the most grotesquely malapportioned legislative chamber in any country in the world. A voter in Wyoming, which has around 590,000 residents, has 66 times the political influence in the Senate as California, with its 39 million residents. The genius of the American constitution!

Would foreign leaders drafting a democratic constitution today in any country think, “Let’s copy the US Constitution and create a bicameral system in which the population ratios in one branch of the legislature can be as uneven as 66 to one”? Would a constitutional convention in a newly democratic Iran or China choose a presidential system in which an independently elected president, unchecked by the legislature, could plunge the country into a foreign war or tear down or build national monuments in the national capital with private money and without legislative authorization? No, they wouldn’t. Rational founders in the 21st century would conclude that democratic stability and continuity are likely to be more secure under a parliamentary regime than in an American-style presidential system.

Madison, Washington, Franklin, Hamilton, and the other members of the Constitutional convention of 1787 were patriotic, brave, well-informed, thoughtful, and public-spirited. These were unquestionably great men. Unfortunately, in looking for models for self-government on a national scale, they only had the examples of ancient, medieval, and modern city-states, leagues, and the proto-parliamentary British monarchy. With the few precedents at their disposal, and given the need to compromise to hold the shaky union together, the drafters of the US Constitution did the best they could at the time. But they screwed up. It’s time that Americans admit it.

The vice president’s remarks came in response to the growing list of lower-court judges who have attempted to halt the new administration’s agenda with a slew of injunctions. They have directed Team Trump to release federal grants to nonprofits that the administration has frozen for auditing, for example, and blocked the administration from applying its interpretation of the 14^th Amendment, according to which children born to illegal immigrants aren’t automatically entitled to US citizenship.

Vance hit back at the judges for trying to restrict the president in his own sphere and overriding his decisions as to how best to carry out the law (the execute in the “executive branch”). As the Harvard law professor Adrian Vermeule put it in an X post, reshared by Vance, “judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”

But the judges’ actions raise another vexing constitutional question: can a lower court with narrow local jurisdiction render so-called nationwide injunctions that purport to bind every American citizen? By refusing to comply, the Trump administration is effectively answering: no. In doing so, according to The New York Times, the Trumpians have triggered an unprecedented “constitutional crisis.” In recent years, as legal progressives have sought to limit presidential power when it’s held by the other side, it’s become a sort of truism that a lower court in Hawaii or, say, New Hampshire can put a stop to a federal policy covering the whole nation.

In fact, the argument isn’t obvious at all, and there is good reason to believe that America’s Founding Fathers would have been baffled by such gross assertions of judicial hegemony.

Start with the constitutional text. The first clause of Article III of the Constitution reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Read that carefully once more. This so-called vesting clause has at least two notable elements.

First, the only court that shall be established is the US Supreme Court. All other lower courts exist solely at the discretion of Congress, as they have since the Judiciary Act of 1789 — one of the first statutes the First Congress passed. But something created by statute can be taken away by statute. The Federalist’s Sean Davis might have appeared to be trolling when he noted on X that “Congress would be well within its right to just eliminate” any lower courts. In fact, Davis was restating a basic fact about America’s constitutional structure. That precarious state of the lower courts should already tell us something about their authority to neuter executive-branch policy for the whole country.

Second, and more relevant, is what the “judicial Power” means as it is used in Article III of the Constitution. As the University of Chicago Law School professor Will Baude argued in a highly influential 2008 law-review article, “the judicial power is the power to issue binding judgments and to settle legal disputes within the court’s jurisdiction.”

The deepest question raised by this is the following: what is a federal court’s legitimate jurisdiction when it comes to issuing injunctions — a form of “equitable remedy” in legalese, meaning the court tells one party to perform some act (rather than award damages). In this case, for example, it’s courts ordering the executive branch that it has to automatically grant US citizenship to children born to unlawful migrants.

The answer is simple: when it comes to this kind of remedy, only the named parties to a particular lawsuit are bound by the judgment. So to follow our example: a lower court can only order the federal government to treat as an automatic citizen a specific infant born on US soil to an illegal mother from Honduras. Call him Baby Doe. But a lower court lacks the authority to force the executive branch to grant automatic citizenship to Baby Doe and all other similarly situated children nationwide.

As then-Stanford law professor Jonathan Mitchell argued in a 2018 law-review article, an “injunction is nothing more than a judicially imposed non-enforcement policy” that “forbids the named defendants to enforce the statute” — or executive order — “while the court’s order remains in place.” There is no broader “writ of erasure” that permits a lower court to simply “strike down” a statute or an executive order.

Nationwide injunctions applying to all people across a vast continental nation have no basis in the Anglo-American legal tradition. Rather, the proper scope of a federal court’s power to issue such remedies is restricted to “the defendant’s conduct only with respect to the plaintiff”, as Samuel L. Bray, the Notre Dame legal scholar, argued in a 2017 law-review article

Skeptics of nationwide injunctions aren’t limited to the legal academy. They include Justice Clarence Thomas of the Supreme Court. As Thomas explained in his 2018 concurring opinion in the landmark Trump v. Hawaii case, historically, “American courts of equity did not provide relief beyond the parties to the case”, because “for most of our history, courts understood judicial power as fundamentally the power to render judgments in individual cases”. Presciently, Thomas concluded his opinion by warning: “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so”.

That day has not yet come, but it might soon enough, as the clash between the second Trump administration and legal progressives reaches a crescendo.

Meanwhile, talk of the administration ushering tyranny by defying nationwide injunctions is overblown, to put it generously. Throughout US history, presidents have contested the scope and the binding nature of the “judicial Power”. As the Yale scholar professor Keith Whittington laid out in his 2009 book, Political Foundations of Judicial Supremacy, the debate over who exactly has the last word when it comes to interpreting and enforcing the Constitution goes back to the beginnings of the republic.

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The US Constitution is anti-democratic

By Matt McManus

Thomas Jefferson, in a 1804 letter to Abigail Adams, asserted that to give “to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch”.

Jefferson’s ideological arch-rival, Alexander Hamilton, agreed with him on this count. It was Hamilton, after all, who famously referred argued in The Federalist No. 78 that the judiciary is the “least dangerous” branch because it has “neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”.

President Andrew Jackson took that Hamiltonian sentiment to its logical conclusion when, in 1832, he responded defiantly to Chief Justice John Marshall’s ruling in an Indian-removal case: “The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.” (Jackson is widely quoted as saying, “John Marshall has made his decision; now let him enforce it”, but his actual precise quip was similar enough.)

Yet no figure in the American tradition embodied the rejection of judicial supremacy quite like Abraham Lincoln. His 1858 Senate debates with Stephen Douglas focused, more than anything else, on the scope of the Supreme Court’s decision in Dred Scott v. Sandford, in which the high court held that black people weren’t citizens under the federal Constitution. Lincoln argued that the decision should be respected when it came to the named litigants to the suit, the slave Dred Scott and his “owners”, but that it shouldn’t be extended a millimeter further.

Three years later, in his First Inaugural Address as president, Lincoln warned that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers”.

JD Vance, in short, is in good company, with Jefferson, Hamilton, and Lincoln on his side. There is no such thing as a legitimate “nationwide injunction”. And the notion that the judiciary is the sole legitimate final arbiter of constitutional questions, including those having to do with the separation of powers, is also belied by US history. Perhaps the Trump administration will follow through on Vance’s sentiment — the birthright citizenship litigation seems as good an example as any. Or perhaps the lower-court #Resistance will first stand down or get put in its place by the Supreme Court.