Has Crisis Passed Away for Failure to be de Riguer
June 30, 2025 1:14 PM Subscribe
Jack Rakove has piece in piece on the Washington Monthly dissecting the failures of Congress and the Supreme Court to meet their obligations as set forth by the United States Constitution. It is a strong argument for journalists to stop talking about constitutional crisises and be more direct about how the system has failed not in parts but in whole. One of the important things he tries to do is provide a useful definition of what a constitutional failure is compared to a crisis.
It may be preaching to the converted hereabouts, but it does give a useful structure to point other to as to why so many of us are freaking out.
It may be preaching to the converted hereabouts, but it does give a useful structure to point other to as to why so many of us are freaking out.
...dissecting the failures of Congress and the Supreme Court to meet their obligations...
Aarrgh!!! REFUSING ISN'T "FAILURE"!!!
The whole point of the design of the Constitution by the Framers is that they knew we would be governed not by angels but by fallible human beings (cf. "If men were angels, no government would be necessary." James Madison, Federalist #51). If the design of the Constitution is no longer preventing bad actors from subverting it, then that indeed is constitutional failure.
Designing a system that was impregnable against whatever evil human beings could throw against it was the whole point.
posted by jonp72 at 2:30 PM on June 30 [3 favorites]
Aarrgh!!! REFUSING ISN'T "FAILURE"!!!
The whole point of the design of the Constitution by the Framers is that they knew we would be governed not by angels but by fallible human beings (cf. "If men were angels, no government would be necessary." James Madison, Federalist #51). If the design of the Constitution is no longer preventing bad actors from subverting it, then that indeed is constitutional failure.
Designing a system that was impregnable against whatever evil human beings could throw against it was the whole point.
posted by jonp72 at 2:30 PM on June 30 [3 favorites]
Well, not to sound like a broken record but...
You may find my suggestion in the secession thread.
posted by evilDoug at 3:08 PM on June 30
You may find my suggestion in the secession thread.
posted by evilDoug at 3:08 PM on June 30
Aarrgh!!! REFUSING ISN'T "FAILURE"!!! -Pedantzilla
Um actually, not to get too eponysterical, but refusing take an action is often semantically equivalent with failing to do that action, aka the failure to act. The US Constitution is a contract with the governed and those they elect. The oath of office taken by Federal Representatives and Senators is part of that contract. I would say take them to court, except that SCOTUS has six folks who have similarly failed to uphold their oaths of office.
posted by Ignorantsavage at 3:38 PM on June 30 [1 favorite]
Um actually, not to get too eponysterical, but refusing take an action is often semantically equivalent with failing to do that action, aka the failure to act. The US Constitution is a contract with the governed and those they elect. The oath of office taken by Federal Representatives and Senators is part of that contract. I would say take them to court, except that SCOTUS has six folks who have similarly failed to uphold their oaths of office.
posted by Ignorantsavage at 3:38 PM on June 30 [1 favorite]
I've talked before about the Good Behavior clause governing when Justices can hold office and the distinction between that and being Officers removable only through impeachment. I imagine there are several other (imaginative and requiring significant resolve to wield) guns like that, lying out on the table that is the constitution, roundly being ignored. It would be a Marbury-like situation but way more tense as the parties being disadvantaged would be in government as opposed to... not, during that original power grab.
I don't think the issue is that Congress and the Court have happily abdicated in favor of an Imperial Presidency, it's that there's just no one in the opposition who would even dream of using those same powers? If there was a chance that Biden would take the Immunity ruling, pro-rogue the justices not meeting the Good Behavior guidelines (so, at least 4 conservative justices), and start ramming through cases re-opening VRA applicability to red states as the appetizer to a feast of restorative jurisprudence to ensure electoral success for generations then they would never have issued that ruling. I'm told via various socials that this is called "Legal Realism" or something.
So of course the Court and Congress will collaborate on handing over powers to the President, they know (and we know) that the opposition will never pick up that or any other gun if they happen to return to power.
posted by Slackermagee at 4:03 PM on June 30
I don't think the issue is that Congress and the Court have happily abdicated in favor of an Imperial Presidency, it's that there's just no one in the opposition who would even dream of using those same powers? If there was a chance that Biden would take the Immunity ruling, pro-rogue the justices not meeting the Good Behavior guidelines (so, at least 4 conservative justices), and start ramming through cases re-opening VRA applicability to red states as the appetizer to a feast of restorative jurisprudence to ensure electoral success for generations then they would never have issued that ruling. I'm told via various socials that this is called "Legal Realism" or something.
So of course the Court and Congress will collaborate on handing over powers to the President, they know (and we know) that the opposition will never pick up that or any other gun if they happen to return to power.
posted by Slackermagee at 4:03 PM on June 30
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Aarrgh!!! REFUSING ISN'T "FAILURE"!!!
posted by Pedantzilla at 1:44 PM on June 30 [3 favorites]