In February 2025, more than one thousand law professors and constitutional scholars, including sixteen from Indiana University, signed a bipartisan letter issued by the American Constitution Society (ACS) proclaiming that the United States was now in a constitutional crisis. They cited “illegal and unconstitutional efforts” by President Donald Trump to undermine the rule of law through numerous executive orders. 

“I think it’s important to stand up for the rule of law in the United States,” said Jennifer Oliva, one of the signatories and a professor at the IU Maurer School of Law. “What is terrifying to me right now is that Congress is not reacting as it has in the past.”

Americans often hear and read today that the United States is in a constitutional crisis. Usually, this claim is not a valid constitutional crisis but merely a reaction to a current political situation, a controversial policy, or a legal dispute. These issues don’t rise to the definition of a constitutional crisis because congressional action, the judiciary, or even a compromise between the feuding parties can resolve them. To understand constitutional crises, however, the first question is what a constitution is, what it does, and what it means — and to do that, one must define a democracy.

‘A flawed democracy’

Book cover: “How to Save a Constitutional Democracy” by Tom Ginsburg and Aziz Z. Huq

America is a liberal constitutional democracy. It’s not liberal in terms of political parties, but liberal because this system of government allows elections, private property, the rule of law, and protection of human rights. According to the University of Chicago Law School’s Tom Ginsburg and Aziz Z. Huq, in their book How to Save a Constitutional Democracy, a democracy needs three intertwined and operational elements: elections, free speech and association, and the rule of law. The United States Constitution addresses all these elements of democracy, and they are now all being tested by the current administration. 

Today, democracies are fragile. According to Freedom House, global freedom declined for the 19th consecutive year in 2024. Democracies in sixty countries deteriorated, though in thirty-four countries, democracies improved. 

Concepts of government systems are diverse and often take on different names. The Economist Intelligence’s 2024 EIU Democracy Index report ranks constitutional systems as full democracy, flawed democracy, hybrid regime, and autocratic regime. 

In a full democracy, power is fully invested in people’s rights and liberty. In a flawed democracy, people’s rights are respected, and elections are held, but signs of democratic decay exist. With a combination of autocratic and democratic elements, a hybrid regime is an electoral autocracy or an anocracy because its elections are merely a façade. An authoritarian regime suppresses liberty and expression, and one leader rules. 

The EIU’s Democracy Index found twenty-five full democracies, representing only 6.6 percent of the global population; forty-six flawed democracies, representing 38.4 percent of the global population; thirty-six hybrid regimes, representing 15.7 percent of the population; and sixty authoritarian regimes, representing 39.2 percent. The 2024 Democracy Index ranked the United States a flawed democracy.

In February 2025, the Center for Systemic Peace’s Polity Project, which monitors and ranks political governments worldwide, downgraded the United States to a “non-democracy” or an anocracy. The organization stated that the actions of the Supreme Court and Donald Trump, to consolidate political power in the executive branch, accounted for the ranking. 

A living document

While definitions vary, a simple description of a constitution is the basic principles and laws that dictate how a nation is governed. Yale University constitutional law professor Keith E. Whittington explains in his paper Typology of Constitutional Crises that a constitution must “describe political reality as well as prescribe a political reality.” 

Constitutions are often labeled as “living documents.” In his article “The Living Constitution,” University of Chicago Law School professor David Strauss debates whether the U.S. has a “living document” as a constitution.

According to Strauss, a living constitution changes over time. Strauss suggests a change in the Constitution is inevitable if it is to keep up with a rapidly evolving society. In fact, the U.S. Constitution has been changed twenty-seven times since 1791, including the Bill of Rights, which comprises the first ten amendments.

On the other hand, if a constitution changes over time, what happens to a country’s foundation? What type of rules does it rely on to function? Public opinion, Strauss writes, “blows this way and that.” Is that constant enough to govern? Strauss believes that common law, “a system built on precedents and traditions that accumulate over time,” has been responsible for the U.S. Constitution’s being a “living document.” 

However, the only way to understand these precedents and traditions is to study those before the U.S. Constitution. One reason the United States has escaped a constitutional system that blows this way and that is its founder, James Madison. 

‘Anarchy, violence, or civil war’

James Madison led the debates at the Constitutional Convention of 1787 in Philadelphia. | Portrait by Chester Harding (ca. 1829-1830), CC0, via Wikimedia Commons

James Madison thoroughly studied ancient constitutional and governance systems in the 1787 Philadelphia Convention debates. His “Notes on Ancient and Modern Confederacies” in 1786 and “Vices of the Political System of the United States” in 1787 examined systems like the Roman, Lycian, Achaean, and Germanic confederacies and their successes and failures as governments. From these studies, Madison led the convention debates, attempting to avoid the pitfalls that caused other confederacies and constitutions to fail. Out of the convention came a constitution that has existed for 237 years.

Still, the U.S. Constitution is not perfect and has often been tested. It relies on political actors to honor norms and practices that are not written in the Constitution but are considered fair play in political game-making. Many presidents and political actors like President Franklin Roosevelt and Senator Mitch McConnell have challenged these norms, often backing down or compromising to avoid violating the Constitution. 

In the 1930s, Roosevelt attempted to “pack the court” to expand the Supreme Court to honor his New Deal program. When his party objected, he backed down. 

Before the 2016 presidential election, McConnell violated the constitutional requirement of advice and consent when he refused to put President Barack Obama’s Supreme Court nomination of Merrick Garland to the Senate hearing for consideration. 

However, when political actors defy norms or threaten not to honor the tenets of the U.S. Constitution, these actions can evolve into a constitutional crisis. According to Sanford Levinson and Jack Balkin in their paper “Constitutional Crises” in the University of Pennsylvania Law Review (2009), “The American Constitution was born in crisis and tested in crisis.” 

Most students learn that the U.S. Constitution is built on a system of checks and balances with three branches of government: Congress (Article 1), the Executive (Article 2), and the Judiciary (Article III). In The Federalist No. 47, James Madison distinctly wrote that the separation of powers, though not absolute, is distributed and blended in such a way that it provides checks and balances. Each branch of government works together, but conflicts often arise. 

Depending on the situation, a constitutional crisis may occur when a conflict reaches the point where the constitution fails. In the article “Constitutional Crisis and Constitutional Rot” published in the Maryland Law Review (2018), Jack Balkin states, “The central task of constitutions is to keep disagreements within boundaries of ordinary politics rather than breaking down into anarchy, violence, or civil war.” While it’s true that constitutions protect civil liberties and restrain power, the main job of a constitution is to keep the peace.

Source: AboutPolitics, CC0, via Wikimedia Commons

Playing constitutional hardball

While definitions of constitutional crisis vary, one thing is clear: The words “constitutional crisis” are overused and have become a “partisan weapon,” as Whittington describes in his paper. 

To clarify, a constitutional crisis is not “constitutional hardball.” Constitutional hardball occurs when political actors stretch or defy the unspoken rules or norms of fair play in politics. These actions are not illegal; they are just not fair. But they are not a constitutional crisis, though they can become one. One example is budget confrontations that lead to shutting down the government, as one party refuses to negotiate.

A constitutional crisis, Whittington writes, is a “realistic threat of a breakdown in the constitutional order.” A crisis may result when politics diverge from the constitutional path, or it becomes irrelevant, or even abandoned or replaced. Whittington classifies a constitutional crisis in three ways: Crisis of Operation, Crisis of Fidelity, and Crisis of Bad Faith. 

According to Whittington’s 2023 paper, a crisis of operation occurs when significant political disputes are not resolved within the constitutional framework; a crisis of fidelity results when political actors are no longer willing to abide by a constitutional arrangement; and a crisis of bad faith arises when political actors subvert constitutional requirements. 

For instance, in Executive Order 6102 in April 1933, Roosevelt removed the U.S. currency from the gold standard. He forbade the hoarding of gold during the Great Depression — a violation of the Gold Standard Act of 1900. The Supreme Court suggested he may lack such powers, though they did not forbid him to act. At the time, there was evidence that Roosevelt was ready to defy a Supreme Court order that overturned his suspension. A constitutional crisis of fidelity would have resulted if he had defied that order. Roosevelt did not defy the order.

“

We are saddened by the fact that we have to explain to the President this fundamental democratic principle, but we do: a president has the obligation to obey the Constitution as well as court orders enjoining his illegal and unconstitutional efforts.

”

—From a bipartisan letter signed by more than 1,000 law scholars in February 2025

In a Crisis of Operation, political actors fail to follow the intended meaning of the Constitution to resolve a political crisis or one that leads to disaster. An example is when James Buchanan sat by while Southern states seceded from the Union and did nothing. Buchanan believed that the Constitution did not allow him to deal with secession. Buchanan believed that the question of secession was for the state, not the federal government. Levinson and Balkin write in “Constitutional Crises” that Buchanan did not think the Constitution allowed him to deal with “the most urgent problem facing a nation.”

A Proclamation of Constitutional Crisis

Although Charles Geyh, Distinguished Professor in the Maurer School of Law at IU Bloomington, dislikes crisis rhetoric, he believes that the United States now has a president who is “allergic to the rule of law.” “He has been quite upfront about that in his second term by basically self-identifying as a king and by responding to questions like, ‘Do you think that you are under the obligation to follow the Constitution’ with ‘I don’t know,’” said Geyh, who signed the ACS letter. To Geyh, Trump is testing the limits of his constitutional power through his executive orders.

Geyh’s colleague Jennifer Oliva asserts that because Congress has abrogated its Article 1 authority to the executive, this violates the Constitution’s separation of powers. 

IU law professor Yvette Butler agrees. “I was very concerned about the number of executive orders being signed. Birthright citizenship was a big concern, especially having a president who tries to redefine what birthright citizenship is when we have a very clear constitutional law on it. The overturning of the Dred Scott opinion by the Fourteenth Amendment, Section 1, removes the question of who a citizen is. I think that who can be a citizen is very clear,” said Butler. 

So, is the U.S. Constitution healthy? For Geyh, it is not. “The structural impediment [in our Constitution] is that we have never had a president who isn’t committed to the rule of law like past presidents were,” said Geyh. “The usual checks and balances aren’t in place as they have normally been. The Constitution is ill-equipped to deal with this moment in time.”

IU constitutional law professor Steve Sanders agrees. Speaking in April on constitutional crises at a meeting of the League of Women Voters–Bloomington Monroe County, he said, “In the current situation where Congress has yielded to the executive, we cannot claim to have a functioning government. It can’t be said urgently enough what a crisis we are in.”

For the University of Chicago’s Tom Ginsburg, the question is, will the Constitution be resilient enough to withstand Trump’s actions if it is not healthy now? “We are in a constitutional crisis now,” said Ginsburg. “Our Constitution is really old. It is 18th-century technology for a 21st-century government, which is not ideal.” 

Professors in the Maurer School of Law at IU Bloomington: (l-r) Yvette T. Butler, Associate Professor; Jennifer D. Oliva, Professor of Law and Val Nolan Faculty Fellow; Charles G. Geyh, Distinguished Professor and John F. Kimberling Professor | Courtesy photos

Constitutional rot

Clearly, American life has changed dramatically since 1787. While the Founding Fathers designed the Constitution, understanding that politicians were not angels, they thought the document’s protections — e.g., the separation of powers, norms and practices, etc. — would require that politicians take the country’s interests to heart. 

However, the Founders couldn’t anticipate today’s political parties or their giant financial machines. They didn’t expect massive technological changes or an enormous voting public. Their world was much smaller than the one that exists today. 

According to Ginsburg, the most pressing question is whether the United States will have legitimate, reasonable elections in 2026 and 2028. 

“We should all focus on this because with the help of the Supreme Court, the stakes of executive power have been raised so high. They’re being abused right now,” said Ginsburg. “It’s hard to imagine that the Trump administration is acting like people who will give up their power. So, I think it’s a big question mark whether the whole thing will prevent us from sliding into a dictatorship.”

We typically think of democracies failing when large tanks and armed men take over in a coup, but that, too, is changing. According to Ginsburg and Huq’s book, 145 coups were successful from 1960 to 1989, but only thirty-six were successful after 1989. Nowadays, most democracies die slowly through constitutional rot, a process of decay over time. 

According to Balkin, four factors contribute to constitutional rot: loss of trust in the government and fellow citizens, polarization, economic inequality, and policy disasters. 

“There’s been a long, slow creep,” said Oliva. “It wasn’t just January 20th that happened, and all of a sudden this lawlessness happened.” 

“For the first time in my lifetime, I’ve heard myself saying this: ‘We do not have a healthy Constitution,’” said Geyh. “Right now, we are a deeply divided people. We are a nation, a nation of a man, not laws. We are prepared to disregard the Constitution in support of a person.”

So, can an unhealthy constitution be healed? If so, how? 

‘Exercise the rights of assembly and petition’

Butler believes a constitutional crisis can be an essential reminder to citizens and political actors. “A crisis helps to remind us of why we have certain norms, why the Framers included a bill of rights where speech and due process were included,” she said. “A crisis can encourage participation, like protest, to help deter or reverse the crisis.” 

Finally, Butler said, “some of us have been attuned to a deep crisis for a while, given the destruction of Reconstruction by the courts,” a reference to what Eric Foner in his book The Second Founding called the transitional decade in the abandonment of Reconstruction, when Rutherford B. Hayes was elevated to the presidency as a trade-off for Democratic control of all southern states.

“So, if a constitution is only now in crisis,” said Butler, “I think that it suggests that it has been working well until now.”

Tom Ginsburg, Professor of Law, The University of Chicago Law School | Courtesy photo

In Ginsburg’s research, numerous examples exist worldwide of democracy dying. Yet he has found that a tipping point sometimes stops and reverses the erosion. It could be civic protests, an election, or even judicial action. 

“We’re in a crisis,” said Ginsburg. “But a crisis provides an opportunity because it would be a clear moment when all Americans should realize that our Constitution and democracy are under a grave threat. That means it is time to exercise the rights of assembly and petition.” 

In Steven Levitsky and Daniel Ziblatt’s book, How Democracies Die, they tell the story of how Chilean politicians rebuilt Chile’s democracy after intense conflicts between the Socialists and Christian Democrats destroyed it in 1973. 

Extreme polarization and distrust between the parties existed before 1973 and thereafter. This polarization was even greater than the contempt that Chilean politicians had for Pinochet’s dictatorship. But in 1978, Socialist leader Ricardo Lagos and Christian Democratic party president Eduardo Frei Montalva attended a dinner hosted by Christian Democratic senator Tomas Reyes. Afterward, they started to meet regularly and talk. Other party leaders, including lawyers and academics, joined them. These “Group of 24” gatherings began with having casual dinners and evolved into building trust amongst the participants.

In August 1985, they met and signed the National Accord for a Transition to a Full Democracy, pressing for democratization and forming the Democratic Concertation coalition based on consensus politics. In a 1988 plebiscite, this coalition toppled Pinochet and then won the presidency in 1989, holding it for two decades. Chile has been generally considered a stable representative democracy since 1990. 

Will this happen in the United States? Will a coalition form of political actors who will press for continued democratization? No one knows. No consensus exists on whether the U.S. is sliding into autocracy, but there are signs. 

“We have experience worldwide with populist leaders who are in power, then lose power, then return,” said Ginsburg. “Victor Orban [of Hungary] is one such person. [Narendra] Modi in India. [Recep Tayyip] Erdoğan [of Turkey] and even the Kurksi Brothers in Poland. We should have been warned.” 

Ginsburg believes that democracy can last. “I think that America will survive,” Ginsburg said, “But we’re clearly in a moment of grave conflict, both partisan and institutional. Will our liberties be enhanced by them or at least protected? That is the open question.”