Harvard legal scholars debate the state of the U.S. constitution (2025)

Article timing / relevance

• Some view the piece as already dated given rapid political changes since early 2025 and the fast-moving Trump-era developments it addresses.

Executive power and enforcement

• Repeated concern that the presidency has accumulated excessive power over time; Trump is seen by many as the first to aggressively exploit the full extent of that power.
• Disagreement over whether Trump has actually created a “constitutional crisis”:
  • One side argues he frequently defies or frustrates court orders, weaponizes DOJ and immigration agencies, and is edging toward authoritarian rule.
  • Others insist he (and opponents) are still operating within existing legal mechanisms (appeals, venue choices) and that the system remains intact.
• A minority argues the Constitution’s fatal flaw is that only the executive ultimately controls armed force; if a president and loyal security apparatus refuse to comply, neither Congress nor SCOTUS can enforce their will without a de facto coup.

Congress, delegation, and gridlock

• Strong criticism that Congress has offloaded too much responsibility to the executive and courts (war powers, regulation, monetary policy).
• Chevron, “major questions,” and administrative law fights are seen as symptoms of Congress passing vague statutes and then failing to clarify them.
• Others stress that Congress is not “abdicating” but actively using power for partisan ends; Democrats are criticized as too accommodating.
• Structural resentments include gerrymandering, lack of House expansion, incumbency, and the role of lobbyists; proposed fixes include term limits, age caps, and a larger House.

Courts and constitutional interpretation

• Originalist and conservative doctrines (unitary executive theory, major questions, qualified immunity, historical-tradition 2A analysis) are attacked as partisan inventions that effectively block congressional action.
• Counter-argument: absent judicial evolution, the country would be stuck with an obsolete 18th‑century framework; flexible interpretation has enabled modern free-speech and rights expansions.
• Concern that SCOTUS has become openly partisan, especially on presidential immunity and executive control; others note historically high rates of unanimous decisions as evidence it isn’t purely partisan.

Federalism, representation, and reform ideas

• Deep divide over whether the Constitution’s state-centered design is a core virtue or a racist, oligarchic relic.
• Defenders stress the US as a federation of semi-sovereign states, not a pure democracy; critics point to minority rule via the Senate, Electoral College, and amendment difficulty.
• Reform proposals (some seen as radical, others modest):
  • Rolling SCOTUS term limits; court expansion or accountability mechanisms.
  • Ranked-choice or multi-choice voting to enable more than two parties.
  • Stronger campaign-finance rules and transparency.
  • Bans on gerrymandering; House expansion.
  • Weakening or abolishing the Senate; abolishing the Electoral College; national popular vote for president.
  • Repealing the 17th Amendment to return Senate selection to state legislatures (controversial; some see it as empowering states, others as deepening unrepresentativeness).

States’ rights, social welfare, and mobility

• Some insist the core problem is federal overreach; they want more policy left to states and argue that is the Constitution’s original design.
• Others respond that:
  • High interstate mobility and economic integration require national standards (e.g., environmental regulation, social welfare, civil rights).
  • Without federal social programs, poorer or more regressive states would entrench deep inequality and effectively “starve” residents.
• Debate over whether states as “policy havens” are a feature (people can move to preferred regimes) or a bug (basic rights and welfare become geography-dependent).

Democracy, minority rule, and political culture

• Several commenters argue the Constitution per se is not “broken”; instead, elites and the public are less committed to norms, integrity, and the rule of law.
• Others say structural minority rule is the problem: disproportionate rural influence, small-state overrepresentation, and the ability to win the presidency with a minority of votes.
• Some defend counter-majoritarian features as necessary bulwarks against “mob rule” and populist handouts; critics question why similar protections couldn’t coexist with more equal voting power.

Historical context and slavery

• Extensive back-and-forth on how much the Founding compromises around slavery still shape today’s system:
  • One camp emphasizes the Three-Fifths Compromise, secession documents, Jim Crow, and ongoing racial disparities as evidence that the system was built to entrench a slaveholding elite and still reflects that origin.
  • Another sees constant invocation of slavery as overused and historically myopic, arguing aristocratic capture and polarization have been recurring features across US history.
• Broader historical comparisons (1790s, Civil War, Whiskey Rebellion) are used both to:
  • Downplay the novelty of current polarization, and
  • Highlight that previous crises were ultimately resolved through strong federal action and constitutional evolution—not static adherence to “original” design.