“It is through our actions that we will preserve our constitutional republic, or, heaven forbid, lose it.”
DEER DIARY
THE SECRET LIVES OF OUR HIDDEN NEIGHBORS. by
lauren grabelle
42 A MOMENT OF CRISIS?
THE PHRASE “CONSTITUTIONAL CRISIS” IS EVERYWHERE. BUT IS IT ACCURATE? by thomas b griffith , ilya shapiro and noah feldman
THE FEDERALIST SOCIETY AND THE BURDEN OF VICTORY
CAN AMERICA’S MOST INFLUENTIAL JUDICIAL ORGANIZATION MAINTAIN ITS POWER?
by ethan bauer
Pew Research Center’s Religious Landscape Study has been doing just that — at scale — for nearly 20 years. With responses from over 35,000 Americans across all 50 states, it’s the most comprehensive look at faith, beliefs, and identity in our lives and our country.
Dive into the data at pewresearch.org/rls
“Fireworks are about as exhilarating as they are dangerous, but I never expected to be the target.”
Feldman is the Felix Frankfurter Professor of Law at Harvard University. A columnist for Bloomberg Opinion, Feldman also writes for The New York Review of Books and was a contributing writer for The New York Times Magazine. The author of 10 books, his essay on religious respect for the Constitution is on page 51.
An award-winning illustrator from Toronto, Singleton’s work has appeared in Los Angeles Times, Harvard Business Review, Science and Smithsonian magazine. Other clients include publishers HarperCollins, Penguin Random House, Macmillan, Hachette, Simon & Schuster and Houghton Mifflin Harcourt. Her illustration is on page 18.
Hida is a Japanese Thai journalist whose work has appeared in The New York Times, National Geographic and Mastermind Magazine. She is a former staff reporter for the Times in Tokyo, where she covered everything from books to politics to gender. Her story on a global shortage of caregivers for seniors is on page 24.
Rebeiro is an associate professor at Brigham Young University’s law school and a Wheatley Institute fellow. He has published articles in top law journals at Notre Dame, BYU and Harvard. His forthcoming book, “Frederick Douglass and Constitutional Abolitionism,” is under contract with Harvard University Press. Rebeiro’s essay on Douglass’ evolving view of the Constitution is on page 62.
Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. He is the author of several books and has contributed to a variety of publications, including The Wall Street Journal, The Washington Post, Los Angeles Times, National Review and Newsweek. His essay on what constitutes a constitutional crisis is on page 48.
Levi is a former law professor and dean of the Duke University School of Law. A former chief U.S. district judge for the Eastern District of California, Levi served on the Presidential Commission on the Supreme Court of the United States in 2021. His essay on respect for the court and the rule of law is on page 68.
DAVID F. LEVI
BRADLEY REBEIRO
ILYA SHAPIRO
NOAH FELDMAN
STEPHANIE SINGLETON
HIKARI MAE HIDA
A GREATER UNDERSTANDING
Scholars use the Latin phrase “locus amoenus” — meaning pleasant place — to describe spaces of peace and regeneration in great works of literature.
Beautiful and bucolic, these places tend not to be city cemeteries.
But when in law school, one can’t be too picky. And so, while studying at Yale, I adopted the Grove Street Cemetery as my personal “locus amoenus.” Situated a literal stone’s throw from the Sterling Law Building on Yale’s campus, I could stroll across the street to steal a few moments of peace and clarity while walking among the final resting places of so many American luminaries.
On these walks, I stumbled upon the gravesites of, among others, Noah Webster, of Webster dictionary fame; Walter Camp, the “father” of American football; and Nathaniel Smith, the co-founder of Yale and Dartmouth medical schools and the surgeon who saved a young Joseph Smith Jr.’s leg from amputation. On one particularly memorable fall day, I came across the tomb of Roger Sherman, known as the only one to have signed all four of the nation’s founding documents.
As I learned more about Sherman — who was the second oldest delegate to the Constitutional Convention behind Benjamin Franklin — I came to believe he deserves to be known for more than signing important historical documents. What Sherman gave the country is something former federal Judge Thomas B. Griffith discusses in this special Constitution issue of Deseret Magazine: a model for “how to get along with people with whom we disagree” (page 45).
Indeed, before there ever was a Constitution, there was a constitutional crisis. The convention was at a deadlock in the summer of 1787 over representation in the legislative branch. The big states wanted representation based on population (the Virginia Plan), and the small states sought equal representation (the New Jersey
Plan). Sherman proposed a compromise where the bicameral legislation would have equal representation in one chamber, the Senate, and proportional representation in the other chamber, the House of Representatives.
The secret of the Constitution, Griffith argues, is that it forces us to learn to get along with those with whom we disagree and find solutions that work for the good of the union. And, as Justin Collings, a noted constitutional scholar at Brigham Young University’s Wheatley Institute, writes in this month’s commentary, the twin trends of partisan polarization and constitutional illiteracy are “intimately related” (page 15). He continues: “As knowledge about the Constitution ebbs, so does allegiance to it. And because the Constitution was designed in significant part to keep partisan passions at bay, constitutional drift fuels partisan enmity. The future health of our constitutional republic requires that we increase our own knowledge of the U.S. Constitution and do more to transmit such knowledge to the rising generation.”
This issue also features thought-provoking essays by Manhattan Institute’s Ilya Shapiro (page 48), Harvard Law School’s Noah Feldman (page 51), and Brigham Young University’s Bradley Rebeiro (page 62), among others.
This, then, is the chief aim of Deseret Magazine’s annual issue dedicated to the U.S. Constitution: fostering a greater understanding and appreciation for the blessings of the Constitution and the unique challenges the founding document faces in our time. For many years, the editorial pages of the Deseret News printed the following epigraph. It’s a statement that I believe would have pleased the devoutly religious and profoundly patriotic Roger Sherman: “We stand for the Constitution of the United States as having been divinely inspired.”
EXECUTIVE EDITOR HAL BOYD
EDITOR
JESSE HYDE
CREATIVE DIRECTOR
ERIC GILLETT
MANAGING EDITOR MATTHEW BROWN
DEPUTY EDITOR
CHAD NIELSEN
CONTRIBUTING EDITORS
JAMES R. GARDNER, LAUREN STEELE
EDITOR-AT-LARGE DOUG WILKS
STAFF WRITERS
ETHAN BAUER, NATALIA GALICZA
WRITER-AT-LARGE
MICHAEL J. MOONEY
CONTRIBUTING WRITERS
LOIS M. COLLINS, JENNIFER GRAHAM, KEVIN LIND, MARIYA MANZHOS
ART DIRECTORS
IAN SULLIVAN, BRENNA VATERLAUS
COPY EDITORS
SARAH HARRIS, VALERIE JONES, CHRIS MILLER, CAMILLE SMITH
POSTMASTER: PLEASE SEND ADDRESS CHANGES TO PO BOX 2220, SALT LAKE CITY, UTAH 84101.
PUBLISHER BURKE OLSEN
CHIEF FINANCIAL OFFICER ERIC TEEL
SENIOR VICE PRESIDENT SALES TRENT EYRE
VICE PRESIDENT MARKETING EMILY HELLEWELL
VICE PRESIDENT SALES SALLY STEED
PRODUCTION MANAGER RHECE NICHOLAS
DIRECTOR OF CIRCULATION SYLVIA HANSEN
THE DESERET NEWS’ PRINCIPAL OFFICE IS 55 N. 300 WEST, STE 400, SALT LAKE CITY, UTAH. COPYRIGHT 2024, DESERET NEWS PUBLISHING CO. ALL RIGHTS RESERVED. PRINTED IN THE USA.
DESERET
PROPOSED AS A STATE IN 1849, DESERET SPANNED FROM THE SIERRAS IN CALIFORNIA TO THE ROCKIES IN COLORADO, AND FROM THE BORDER OF MEXICO NORTH TO OREGON, IDAHO AND WYOMING. INFORMED BY OUR HERITAGE AND VALUES, DESERET MAGAZINE COVERS THE PEOPLE AND CULTURE OF THAT TERRITORY AND ITS INTERSECTION WITH THE BROADER WORLD.
OUR READERS RESPOND
Our JUNE cover story was a profile on new Interior Secretary Doug Burgum. Writer Samuel Benson examined how the former North Dakota governor’s paradoxical approach will impact the West (“Rough Rider”). Reader Nathan Lofland appreciated how the story explained Burgum’s rise to political prominence in the context of how he plans to implement public policy. “When we elevate public figures, especially those shaping land and conservation policy, it’s essential to include the full scope of their actions, not just their origin stories,” Lofland wrote. “The public deserves clear-eyed reporting on both the people and the policies.” An essay by Dr. Talmage D. Egan argued how the scientific community and media share the blame for allowing conspiracy theories to unravel scientific authority and put public health and welfare at risk (“Knowledge Under Siege”). The article spawned a lively debate among our online readers sorting out fact from fiction on topics ranging from climate change to the Covid-19 pandemic. Egan’s piece also circulated in medical and scientific circles across the country. “I hope it helps stoke some reform in how we incentivize and reward academic research — the current model needs to be reworked,” wrote Dr. Logan Nye, a physician and computer scientist at Carnegie Mellon University. The essay was highlighted in the American Society of Anesthesiologists’ ASA Monitor Today, reminding its members that “as the influence of unscrupulous bad actors continues to grow, Egan says it’s up to the scientific community to identify and root out fraud and to transparently communicate its efforts to the public to maintain trust.” And, in an email to Deseret Magazine commending the essay to readers, the Monitor’s Editor-in-Chief Dr. Steven L. Shafer, an emeritus professor of anesthesiology, perioperative and pain medicine at Stanford University, warned of the consequences in not addressing the proliferation of bad science: “By turning to shamans and charlatans to understand physical reality we deny future generations the knowledge required to navigate an increasingly complex world.”
“The public deserves clear-eyed reporting on both the people and the policies.”
LITTLE DELL RESERVOIR, UTAH
PHOTOGRAPHY BY DONOVAN KELLY
CHARTER OF UNITY
THE CONSTITUTION MATTERS NOW MORE THAN EVER
BY JUSTIN COLLINGS
The metrics are miserable — alarming and stark. Civic and constitutional literacy among Americans of all ages has plummeted to ominous depths. One 2024 study found that a third of American adults could not name all three branches of the federal government; 1 in 6 could not name any. Asked to name the rights guaranteed in the Bill of Rights, only 39 percent could name the freedom of religion and only 29 percent the freedom of the press. Another 2024 survey found that 60 percent of American undergraduates did not know the term lengths for members of Congress. About half identified Thomas Jefferson as “the father of the Constitution,” and a similar number identified 1776 as the year the Constitution was drafted. Less than a third knew that Congress wields the power to declare war. Three-quarters could not identify the president of the Senate, and two-thirds could not identify the chief justice. By contrast, 89 percent could identify Jeff Bezos as the owner of Amazon.
At the same time, partisan polarization has metastasized. The country’s political camps regard one another with mounting mutual antipathy. Indeed, contempt for the other party — and fear of what it might do to the country’s future — may be each party’s strongest unifying strand. Political differences increasingly wreck family relationships and ruin incipient romance. Venomous partisan polarization threatens our capacity to live together and govern ourselves in a viable constitutional republic.
These two trends — partisan polarization and constitutional illiteracy — are, I submit, intimately related. As knowledge about the Constitution ebbs, so does allegiance to it. And because the Constitution was designed in significant part to keep partisan passions at bay, constitutional drift fuels partisan enmity. The future health of our constitutional republic requires that we increase our own knowledge of the U.S. Constitution and do more to transmit such knowledge to the rising generation.
As Yuval Levin has argued in his book, ”American Covenant: How the Constitution Unified Our Nation — And Could Again,” the Constitution is a charter of national unity. Its structure requires us to live and govern together. If we honor its letter and spirit, the Constitution demands mutual negotiation and accommodation across our differences. With its elegant interplay of separated powers and checks and balances, the Constitution pushes competing interests — what the founding generation called “factions” — to collaborate in an enduring project of shared governance. Realizing that sharp differences were an inevitable byproduct of freedom, the founders made a virtue of necessity — they turned a bug into a feature — by harnessing the bewildering variety of interests across a large and diverse republic in the defense of liberty. The Constitution was never intended to liquidate difference; it was designed to channel difference into the intergenerational project of self-government.
Writing as “Publius” in the famous 10th essay of the Federalist Papers, James Madison maintained that the diversity of a large republic made it less likely that any one faction would ever gain complete control. In addition, the Constitution created structures designed to lower the stakes of national politics. It did so in four principal ways.
First, it divided power between the federal government and the states, thereby preserving diversity among the states and limiting federal power.
Second, it separated powers within the federal government both by allocating powers among the legislative, executive and judicial branches and by enabling each branch to balance and check the others.
Third, it provided that officers of the federal government would be chosen at different times, by different means and for different tenures, thus limiting the consequences and significance of any one election.
And fourth, it enshrined certain core individual rights against government encroachment, thereby shielding fundamental freedoms from political contestation.
Our present impasse is the product of forgetting or diluting these basic principles. The course of our constitutional history has been to inflate the powers of the federal government at the expense of the states and to inflate the powers of the executive branch (and, to a lesser extent, of the judicial branch) at the expense of the legislature. The result is that national politics, and specifically presidential politics, seem all-important. The outcome of each election strikes many as existential.
The true existential threat to the republic, however, is not a specific politician or party. It is our collective ignorance of and weakening allegiance to core constitutional principles. The cure for this is education and engagement — a unique brand of constitutional patriotism that places loyalty to constitutional principle above any partisan interest.
JUSTIN COLLINGS IS THE ACADEMIC VICE PRESIDENT AND PROFESSOR OF LAW AT BRIGHAM YOUNG UNIVERSITY AND A CONTRIBUTING SCHOLAR AT BYU'S WHEATLEY INSTITUTE.
DOG DAYS
THE MAKING OF AMERICA’S FAVORITE SAUSAGE
NO FOOD IS more American than the hot dog. This humble, ubiquitous tube of meat has been a hit for more than 150 years, on boardwalks and city streets, at backyard cookouts and Independence Day parades. Like our country itself, it’s a product of immigrants that has
evolved to contain multitudes, from special toppings to mysterious ingredients. Bun or no bun, it’s now a part of our national DNA, a roll-up-your-sleeves alternative to those other fancy cuisines. Here’s how the sausage was made.
—NATALIA GALICZA
THE GLIZZY ’60S
Frankfurters, a beef-and-pork link brought stateside by German immigrants, went viral in the 1860s, nearly four centuries after they were invented in the old country. By 1939, hot dogs were so American that the White House served them to the king and queen of England on a picnic with the Roosevelts, bolstering the U.S.-British alliance on the verge of World War II. “Hot dog diplomacy” became a soft-power staple, fueling relations with the former Soviet Union, Middle East and Europe.
54.5 PERCENT MEAT
The USDA requires that hot dogs — like bologna — contain this minimum majority of meat, often trimmings and scraps. Fat is capped at 30 percent, water at 10 percent and “binders and extenders” like milk or cereal at 3.5 percent. It’s all ground into a paste with salt, sugar and spices like nutmeg, paprika and coriander, cured with nitrites and smushed into casings — tubes made from sheep intestines, beef collagen or cellulose. Most are sold “skinless,” the casing removed after cooking.
70 DOGS PER CAPITA
The average American eats nearly six hot dogs each month. That's 20 billion nationwide each year, per the National Hot Dog and Sausage Council, or at least 2 billion pounds’ worth — more than 3,500 times the weight of the Statue of Liberty. By city, Los Angeles eats the most, but New York, Dallas, Chicago and Boston are not too far behind.
HOT DOGS WERE INVENTED IN
1487
AMERICANS AVERAGE NEARLY SIX HOT DOGS A MONTH
CITIES THAT GUZZLE THE MOST GLIZZIES ������������
los angeles1 new york2 dallas3 chicago4 boston5
FRANKLIN DELANO ROOSEVELT ROASTING HOT DOGS.
19+ REGIONAL VARIETIES
We are not the same. New Yorkers favor sauerkraut and brown mustard. Chicago dogs come in a poppy seed bun with relish, veggies and celery salt. Other folks may add chili or fish cakes. Beef franks rule the East Coast; the West Coast leans into poultry. Americans don’t distinguish between hot dogs and the stubby, beef-and-pork frankfurter or its longer, more slender relative, Vienna’s “wiener.” Industrial cheese-injected wieners are also hot dogs; but Polish dogs are not.
27’ X 8’ X 11’
That’s the size of a Wienermobile, Oscar Mayer’s 89-year-old marketing gimmick. Six such hot dog-shaped vehicles traverse the nation’s highways with 12 drivers, less than 1 percent of all applicants for this coveted position. Costco, the membership wholesaler, continues another venerable campaign, selling 100 million hot dog and soda combos each year for just $1.50 each — the same price despite 40 years of inflation, at the co-founder’s personal insistence.
98 MPH
That’s how fast dogs shoot from the notorious hot dog cannon, wielded by the “Phillie Phanatic” at Philadelphia Phillies baseball games. At least four other pro sports teams have adopted the beloved contraption since its 1996 debut. Hot dogs have been sold at sports stadiums since the 1800s. Today, fans consume about 8,000 dogs at every Major League Baseball game, amounting to 20 million wieners across a six-month season.
54.5% meat
36 minutes
“I love hot dogs.
I LOVE ’EM IN BUNS. I LOVE THEM OUTSIDE OF BUNS. I LOVE THEM WITH BAKED BEANS. I JUST LIKE HOT DOGS. ... MAY THERE BE MANY, MANY MORE HOT DOGS SERVED IN OUR WONDERFUL LAND.”
MITT ROMNEY ON NATIONAL HOT DOG DAY, JULY 19, 2023
76 DOGS IN 10 MINUTES
Competitive eater Joey Chestnut set this record at the Nathan’s Famous International Hot Dog Eating Contest in 2021, downing almost 17 pounds of beef — like swallowing 44 billiard balls. Since 1972, contest champs have eaten more than 1,509 franks. One hot dog can shave 36 minutes off a person’s healthy lifespan. High sodium can cause cardiovascular disease and high blood pressure, while nitrates and nitrites have been linked to breast and prostate cancer.
MEETS THE USDA’S HOT DOG LITMUS TEST
CONTESTED TERRITORY
WHAT TO MAKE OF LAND ACKNOWLEDGMENTS?
YOU MAY HAVE seen this: As an event begins, somebody takes the microphone and lists off the Native American tribes who once inhabited the place where the event is held. Such “land acknowledgments” have become common practice over the past decade, at city council meetings, university commencements, rock concerts, the Academy Awards and even the Democratic National Convention. The idea is that recognizing these former inhabitants by name reminds us that they were here, includes them in the conversation and helps to ameliorate historical injustice. But are they a useful practice for society? Or are they just an empty, self-aggrandizing ritual?
—ETHAN BAUER
OVERDUE RECOGNITION
YOU CAN’T RIGHT a wrong until you admit it. Behind each land acknowledgment is a recognition that cities and towns across the United States — as in New Zealand, Argentina and other former colonies around the world — occupy land that was once inhabited by other peoples. The troubled history of how this came to be so, and the often dire implications for those who were here before, is implicit. Land acknowledgments encourage us to look back with empathy and reflection, sharing a societal narrative that is encompassing, honest and bends toward justice.
This simple practice, which costs nothing and requires no special training, can challenge us to think more critically and holistically about our own histories. This is not about changing facts or choosing sides but rather understanding that the stories handed down to most of us were told from the perspective of the victors in conflicts over these territories. It’s only fair that we practice seeing those events through the perspectives of all participants and understanding their experiences as well.
If this conversation makes us uncomfortable, maybe it should. Displaced peoples have endured violence, confinement on reservations, forced assimilation, attacks on their languages and cultures, and ongoing discrimination. Naming them makes that history more visible. “Land acknowledgments should not be feel-good maneuvers,” write three anthropology professors from the University of North Carolina at Chapel Hill and San Diego State University — including members of the Cherokee and Choctaw tribes — in Anthropology News. “If an acknowledgment is discomforting and triggers uncomfortable conversations, it is likely on the right track.”
Think of land acknowledgements as a helpful first step on the path to lasting reconciliation, and an invitation to engage with today’s descendants of those first peoples, including Native Americans. History can feel abstract, but the painful experiences described here have shaped both those who lived them and their descendants. And if we want to connect across cultural divides, it’s essential to meet people where they are. According to the National Museum of the American Indian, “Speaking and hearing words of recognition is an important step in creating collaborative, accountable, continuous, and respectful relationships with Indigenous nations and communities.”
EMPTY SIGNALS
LAND ACKNOWLEDGMENTS ARE as vain as they often feel. The lives we live today are built on the results of decisions made, actions taken, successes achieved and losses suffered by those who came before us. Even for those who don’t like the outcome, there is little we can do to change it. Watching people who still benefit from that history as they awkwardly name the peoples whose defeat made their lives possible looks more like self-indulgence than justice. It’s what members of Gen Z might call “cringe.”
The practice offers no solutions, and its adherents sacrifice nothing of value — no giving away the family home, no moving back to the old country — while clinging to a superficial view of tribal identity in which names are enough. “A land acknowledgment is what you give when you have no intention of giving land,” Graeme Wood writes in The Atlantic. “It is like a receipt provided by a highway robber, noting all the jewels and gold coins he has stolen.”
From a broader view, it’s impossible to honor all the former stewards of any land. Most territory anywhere has changed hands throughout history — often in a manner no less violent or painful than colonialism or westward expansion. For example, land acknowledgments in Chicago often cite the Potawatomi, “because when ‘white’ people arrived here, that is who they found,” writes University of Chicago law professor M. Todd Henderson in Newsweek. “But native tribes engaged in constant conquest and displacement as well. The Potawatomi are no more the ‘original’ or ‘true’ owners of Chicago than the European settlers that displaced them.”
In reality, land acknowledgements are a performative act more for the benefit of the speaker than for the peoples being spoken for. Consider the platform of last year’s Democratic National Convention, which name-drops 12 tribes in its first four paragraphs but offers no plan for restoring their ancestral lands — because that is not the intention. Instead, the party pats itself on the back. But virtue signaling isn’t just vapid — it can get in the way of real progress. Specifically, land acknowledgments “become an excuse for folks to feel good and move on with their lives,” notes the Native Governance Center, “without actually contributing anything to the community.”
IN MY OWN WORDS
FINDING BELONGING IN MY MOTHER TONGUE
BY NATALIA GALICZA
Isat on my hands to stop the fidgeting.
My sweaty palms stuck to the leather car seat the whole hourlong drive to Miami Beach. South Florida’s chaotic freeways and shirt-soaking August humidity are enough to make anyone squirm, but the source of my discomfort was the impending family reunion. I stared out the back window of my parents’ sedan and mentally rehearsed discussion topics — my graduation from college, career plans, thoughts on global affairs — all soupy and uncertain in my head as I tried to translate between my mother’s tongue and my own.
My mom gave my sister and me the customary parental spiel when we arrived outside my aunt’s house: make sure to act polite, say thank you, engage in conversation. The last one especially. Our grandfather had come to visit from Brazil that summer of 2022, and we didn’t get to see him often. There are certain subtleties that don’t translate over text messages and phone calls. Like the way he tilts his head
back when he laughs, or how he smells like the same aftershave he’s used since before I existed. He’s one of the kindest men I’ve ever known, and I can see parts of his face in mine, but I was still nervous to talk to
I GREW UP AROUND THREE LANGUAGES: MY MOTHER’S PORTUGUESE, MY FATHER’S HUNGARIAN AND OUR SHARED ENGLISH. THEY EACH SOUNDED LIKE HOME TO ME, BUT WE RESORTED TO SPEAKING ONLY ENGLISH.
him that night. Mostly because I’d never really had a conversation with him before. I grew up around three languages: my mother’s native Portuguese, my father’s
Hungarian and our shared English. They each sounded like home to me — hers was nasal and musical, his was sharp and taut — but neither of my parents could speak the other’s. We resorted to speaking only English in our household, which left my Portuguese rudimentary at best and my Hungarian nonexistent. “Language is a proxy for identity and access,” says Betty Yu, a professor in the Department of Speech, Language, and Hearing Sciences at San Francisco State University. “When children are younger, the family language is a connector, it’s a glue.”
For the first two decades of my life, I didn’t have that glue. I missed out on moments with my grandparents, second cousins, great-aunts and great-uncles who lived abroad and spoke limited English. I couldn’t joke with them, tell them about my day or discuss my hopes for the future. I felt two-dimensional to my relatives. It forced a wedge between us. I even began to see myself that way. How could I develop my own sense of self if I couldn’t
HOW COULD I DEVELOP MY OWN SENSE OF SELF IF I COULDN’T UNDERSTAND OR CONNECT WITH MY FAMILY?
understand or connect with my family? The answer I eventually settled on — which predated the reunion in Miami Beach, as well as several life-altering decisions to come — was simple: I couldn’t.
LINGUISTS DEFINE A heritage speaker as someone who grew up with exposure to a family language that’s different from the dominant or official language in their home country. Spanish and Chinese are the most common heritage languages in the United States, but in a nation where upward of 400 languages are spoken daily, that calculus varies wildly from home to home.
Globalization and immigration have made this mishmash of language and culture more common than ever. Immigrants make up 14 percent of the population, the most in the recorded history of the United States since 1890. And second-generation immigrants — the children of immigrant parents — number around 18 million nationwide, accounting for almost 25 percent of all children stateside. Many, like myself, find themselves floating somewhere between being secured to their family’s culture yet unmoored from the tongues that create it.
Heritage speakers are often more adept at conveying emotion, understanding tone and pronouncing words than someone learning a language for the first time in an academic setting. But they tend to struggle with incomplete acquisition, or a difficulty mastering technical aspects like grammar. They also commonly experience language attrition, which is the loss of language fluency over time. “You have this three-generation pattern,” Yu says. “The first generation is fluent in their heritage language. Then the second generation is passively bilingual, meaning they can understand quite a lot, but it’s hard to speak back. And by the third generation, usually in the American context, the family language is lost.”
Language may be the basis of how humans commune with their surroundings — from ordering at restaurants to sharing family histories to asking strangers for directions — but any language can disappear
if it goes unused for long enough. My parents used English at their jobs, with their neighbors and with their children because it was their only common denominator for clear communication. I was raised to prioritize my English because it’s what I would need to use at school, to make friends and apply for jobs. I still heard Portuguese when I spent time around my extended family, and I could even understand them. I just couldn’t confidently respond.
There’s a unique humiliation behind identifying with a lineage and shared history that I couldn’t actually access — to be around loved ones who all spoke, thought and communicated one way when I operated in another. I felt ashamed and guilty and embarrassed all the time. I eventually stopped trying. “We have a love-hate relationship with our home language. We absolutely love it. We’re attached to it, and we have all sorts of positive feelings about it. But at the same time, there’s an insecurity there,” says María Carreira, executive director of the American Association of Teachers of Spanish and Portuguese. She was the co-organizer of the first national conference on heritage languages and co-directs the National Heritage Language Resource Center at UCLA. “It’s not just a sense of insecurity, but there’s a sense of imposter. … That can make a young kid feel very unwilling to pursue the study of their heritage language.”
Even more than the internal shame, there are sociopolitical obstacles to accessing speech. Multilingualism has historically been framed as a threat to American culture and identity. Precursors to the English-only movement began more than a century ago, when President Theodore Roosevelt wrote, “We have room for but one language in this country, and that is the English language,” in response to a rise in immigration during the rapid industrialization and urbanization of the Progressive Era. Its modern echoes turn up in efforts to enforce English-only speaking in Arizona, mandate that all official communications and publications of the government in
Tennessee be produced in English, and defund bilingual education programs across the country. “We’re among the most multilingual countries, but also one of the most ideologically monolingual,” Yu says. “There’s an expectation, whether by punishment or rewards, for people to become monolingual English speakers.”
Today, some 17 percent of foreign-born Americans speak only English at home. That means their children might not be able to access family recipes. They likely can’t listen to music or read books that come recommended by relatives. They miss getting an intimate peek into how a loved one sees the world. They could not know their relatives at all; unable to see their own family, deeply and truly, and see themselves reflected right back. As much as language can open new worlds and expand horizons, its absence accomplishes the reverse. That realization always lurked in the back of my mind, taking up a quiet corner of neglected mental real estate, but it took a quarter of my life to dawn on me.
WHEN I SET out to properly learn Portuguese, I knew I wanted (however ironically) to do so separate from my family. At least at first. The idea of trying and failing and trying again seemed significantly less daunting around strangers. So I chose to minor in the language as part of my undergraduate degree. Even just a single semester in, I found myself speaking more and for longer periods of time than I ever had in my life. I also shed a sizable chunk of the shame I’d been carrying around in the process. If I heard Portuguese outside the classroom, I now felt brave enough to approach the speaker and tell them, excitedly, that “eu também falo a língua, só com um sotaque inglês.” I also speak the language, just with an English accent.
Language courses in high school and college are traditionally lifelines for students trying to reconnect with their heritage. In some cases, programs and courses are specifically aimed at the heritage speaking experience, rather than geared toward
students with no exposure to their language of choice. The University of California, Los Angeles, for example, offers courses in almost 50 languages and is home to the federally funded National Heritage Language Resource Center. The center researches heritage speakers and has reported that the top two reasons college heritage language learners study their chosen language are, first, to better understand themselves, and, second, to communicate with loved ones.
Yet the ways in which we pursue language are changing. The Modern Language Association estimates fewer than 1.2 million college and university students are enrolled in a language course other than English. That share has dropped by nearly 30 percent in
children in school, as well as for ensuring their success,” Carreira says. “As you are learning your heritage language, you are learning skills that will make you a better student and also, in all likelihood, you are increasing professional opportunities.”
It also makes you an arguably better and healthier person. Learning a language increases empathy and instills a sense of purpose. It can also improve cognitive skills like multitasking, as well as lower the risk and slow the effects of neurodegenerative diseases such as Alzheimer’s and dementia. Multilingual speakers report stronger communication skills, literacy rates, self-confidence, concentration and creativity than monolinguals. Through MRI scans, researchers have even confirmed they have more neurons and denser grey matter — the goop in our brains that helps us control our movements, memories and emotions.
AS MUCH AS LANGUAGE CAN OPEN NEW WORLDS AND EXPAND HORIZONS, ITS ABSENCE ACCOMPLISHES THE REVERSE. THAT REALIZATION TOOK A QUARTER OF MY LIFE TO DAWN ON ME.
just over a decade. Only 1 in 5 K-12 students and 1 in 12 university students is enrolled in a language course. Meanwhile, more than 116 million users are registered on Duolingo, a popular gamified language learning app, and log on every month.
Regardless of format, we keep reaching toward language as a means of grounding, connection and challenge. This is, in part, because we reap far more than social benefits from the practice. “We know that children, when they’re in a school setting that supports their culture and doesn’t see them as inferior, are more engaged and more likely to graduate on time. So it’s a great tool for retaining language minority
I can’t yet attest to any added mental clarity or new neurons, but it’s been more than three years since I began speaking Portuguese in earnest. I’ve engaged in political debates and heartened discussions with relatives I had never even spoken to before; I’ve read the poems my grandmother sends me, noticed the type of writing that stirs her and have felt it stir something in me; I’ve read the facial expressions on each of my second cousin’s faces when they’re particularly animated about whatever subject we managed to land on. Their faces contort dramatically with every new sentence, their hands gesticulate wildly in tune — just like mine do. I am still nowhere near fluent, but I’m not afraid to speak up anymore. I can use my own words, however accurate or mangled. And I experience no shortage of self-discovery now because of that.
When I approached my grandfather that summer night in Miami Beach, I swallowed the nerves that tried to wriggle their way out of me on the way over. I smiled at him. He smiled back. Our cheeks lifted to just the same pitch and our eyes crinkled identically in the same corners. Then, in a manner of speaking, I introduced myself.
THE GREAT GLOBAL CAREGIVING CRISIS
THE U.S. IS AGING INTO A CARETAKER SHORTAGE. SO IS THE REST OF THE WORLD
BY HIKARI MAE HIDA
What if we live a long life and are abandoned or without funds despite our best efforts?” For Wendy Jane Carrel, a senior care specialist with over two decades of experience who operates the consulting service Wellness Shepherd, this question is a looming reality. In the parched deserts of Coachella Valley in the early 2000s, she saw the first ripples of a “silver tsunami” — an aging America colliding with a shrinking pool of caregivers and the soaring costs of care.
Back then, she recalls, “The average American couldn’t even afford the cost.” Today, the situation has only gotten worse for both those needing care and those who offer it. And despite how expensive care is, much of that money isn’t trickling down to caregivers themselves. Caregivers who Carrel has worked alongside often earn poverty-level wages.
Demographers have long warned of a “demographic time bomb” threatening
wealthy nations. Experts estimate that by 2060, 155 million Europeans (roughly 30 percent of the population) will be 65 or older. About 45 million are expected to have at least one disability that disrupts daily
A third of the population is already 65 or over. One in six Americans is aged 65 or older — an estimate expected to rise to 47 percent by 2050, according to the U.S. Census Bureau.
“We are all living longer,” says Joanna Hofman, a senior research leader at Rand Europe. “There are just more of us to take care of and not enough of us to do the caring.”
“WE ARE ALL LIVING LONGER. THERE ARE JUST MORE OF US TO TAKE CARE OF AND NOT ENOUGH OF US TO DO THE CARING.”
living, effectively doubling current elder caregiving needs. In Japan, the Ministry of Health is forecasting a need for 2.72 million nursing care workers by 2040.
We haven’t reached the peak of the problem yet. The Bureau of Labor Statistics projects that demand for personal care and home health aides will soar by 21 percent between 2021 and 2031 — one of the fastest increases for any occupation. Yet, the workforce is already stretched thin, and Boston Consulting Group warns that by 2030, the resulting shortage could lead to a $290 billion loss per year to the nation’s GDP.
This silver tsunami we are facing is already shifting who receives care, who gives care, and where.
Traditionally, caregivers have worked within local environments, providing unpaid or low-paid support in their own communities. However, as populations age and domestic care work becomes less accessible or less attractive due to low wages, many caregivers find themselves unable to meet the rising needs at home. Many are moving across borders to seek more stable incomes, leaving gaps in local care systems. In the U.S., the rising costs continue to deepen the barriers for families and seniors alike, with an increasing number of people looking to leave the country to live out their final years. Carrel reflects on some seniors living stateside she has worked with, who, while living in the U.S., were forced to make the impossible choice of “choosing between air conditioning and eating in the summer.”
“It’s not just about money,” Carrel says. “It’s about dignity.”
FOR MOST OF American history, caring for aging parents or frail relatives was a private, often invisible act, carried out in kitchens and bedrooms away from the public eye or conversation, rarely recognized as work. It was simply part of life, of being a part of a family. The notion of caregiving as a paid profession is a relatively recent phenomenon, born out of seismic demographic shifts and the changing structure of families.
The numbers are staggering. In her book, “The Age of Dignity: Preparing for the Elder Boom in a Changing America,” social activist Ai-jen Poo estimates that 48 million Americans provide unpaid care for loved ones — a contribution valued at $600 billion, a figure that dwarfs the annual revenues of the nation’s largest corporations. Even today, the vast majority of care is still performed by relatives, with women shouldering most of the burden.
Over time, caregiving that was once seen as a natural extension of family duties and community responsibility was transformed by individualism, urbanization and economic demands — becoming an institutionalized and commercial industry. In the
United States, the professionalization of caregiving accelerated in the late 20th century, as home health agencies proliferated and states began to regulate training and certification. The 1987 Nursing Home Reform Act set minimum standards for care in nursing facilities.
But despite this industry shift, commercialized care proved to be inaccessible for many families without causing substantial financial strain. According to a 2024 report from the Kaiser Family Foundation, the median annual cost of a private room in a nursing home is $116,800, while full-time home health aide services top $288,000 — sums that far exceed the
Many are women from the Philippines, Nigeria, Jamaica and Haiti, drawn by the promise of steady work, even if the pay is low and the hours are long.
“Many care workers are still ‘tago ng tago’ or ‘hidden and hiding,’” says Ashlee Monton, who has conducted research about Filipina caregivers in the U.S., making up 1 in 7 immigrant health workers. Compared to back home, wages are high, so many continue to work and live undeclared. And they are willing to work for wages that are far below the costs of institutionalized care.
THE “SILVER TSUNAMI” IS SHIFTING WHO RECEIVES CARE, WHO GIVES CARE, AND WHERE.
median income of $36,000 for Medicare beneficiaries. Nearly 41 million Americans now provide unpaid care to adults, according to the National Alliance for Caregiving, and as the pool of trained professionals shrinks, families are forced to shoulder even more of the burden at the expense of their own livelihoods.
Economic necessity became the overstory of accessing any kind of care, with the demand for in-home, informal care leading to global migration. In Europe, informal caregivers and undeclared migrant workers now provide about 80 percent of elder care. In the U.S., immigrants make up about 25 percent of the home care workforce, according to PHI, a nonprofit research group.
But there is little upward mobility in the work, and protections are limited, says Hofman. Home health aides, who provide the bulk of hands-on care, earn a median wage of just $16 an hour. In many states, turnover rates for direct care workers reaches 60 percent annually. Additionally, recent changes to visa programs and the tightening of the southern border have made it harder for Latin American and Caribbean workers to fill caregiving jobs. Some are now leaving, seeking better opportunities elsewhere or returning home, raising fears of an even deeper shortage.
“If we lose that workforce, more Americans will be forced to look elsewhere for care, or find a way to come up with new community solutions,” says Carrel, the senior care consultant.
With fewer hands available, the quality and accessibility of elder care are at risk of unraveling, leaving vulnerable seniors without the support they need. Carrel gives one example of a family seeking out her help, where the children lived far away from their mother and realized that “her funds wouldn’t last as long as her possible lifespan” if she planned on living out the rest of her life in the United States with her family.
Americans seeking long-term or end-of-life care find that living abroad can offer a more affordable and comfortable alternative.
Carrel helps those who cannot afford domestic caregiving services, but have enough to relocate to countries with lower costs, primarily in Latin America. European
IN MANY STATES, TURNOVER RATES FOR DIRECT CARE WORKERS REACHES
60 PERCENT
ANNUALLY. WITH FEWER HANDS AVAILABLE, THE QUALITY AND ACCESSIBILITY OF ELDER CARE ARE AT RISK OF UNRAVELING.
countries are also considered “often based on heritage or past experience.” While costs are rising worldwide, the price for similar levels of care remains generally lower outside the U.S.
She recently supported four siblings relocating their mother, who lived in Washington, to a semi-independent living facility in Lake Chapala, Mexico. The siblings take turns visiting their elderly mother, who is “having trouble remembering things,” and Carrel occasionally has a care specialist who works in family care check in on her. In the U.S. today, “you need one million dollars over the life of memory care,” notes Carrel.
In a recent New York Times Ethicist column, the phenomenon of Westerners retiring abroad was described as “migration with permission.” Northern Thailand, for instance, hosts retirement communities that promise comfort and savings compared to American standards. Increasingly, families are exploring these options for their aging loved ones.
THE MOVEMENT OF caregivers is not just a one-way journey to the United States. There are some Americans who are
moving to countries like Germany to work as caregivers. In Italy, Peruvian women have become the backbone of elder care in cities like Florence, filling a void left by Italians who can no longer afford to care for their parents at home. Croatians cross the Adriatic to work in Italian households, while some Italian retirees, squeezed by the cost of care, move in the opposite direction — to Croatia, where help is cheaper.
Governments are responding by forging new partnerships and formalizing cross-border arrangements to bring in foreign care workers. These agreements set rules for recruiting, training and integrating international caregivers into national health systems. Japan, for instance, has signed agreements with countries like Indonesia and the Philippines to recruit and support trained caregivers, offering language support and pathways to long-term residency for those who pass rigorous exams.
Similar strategies are unfolding across Europe and North America. Canada and the U.K. have streamlined immigration policies to facilitate the influx of care workers, acknowledging that their aging
populations depend heavily on foreign labor. Even in the U.S., where immigration debates remain contentious, thousands of international caregivers continue to quietly fill vital roles in homes, hospitals and nursing facilities.
These agreements do more than address workforce shortages. They highlight a global recognition that elder care is a shared challenge. It transcends borders. As populations age and resources tighten, the movement of caregivers — and the choices about where to receive care — is becoming integral to modern life.
In the years ahead, how nations negotiate and manage the tsunami will shape the well-being of their oldest citizens and the social cohesion of their communities. For Carrel, this includes reexamining and integrating traditional values of compassion, respect and intergenerational support into new caregiving frameworks to ensure aging populations are cared for with dignity and communal solidarity.
“Shouldn’t your departure be just as holy and sacred as when you were welcomed into this world?” she asks.
“Even here,” she adds softly, “dying is a challenge.”
BETTING ON DISASTER
AS HOME INSURANCE PROVIDERS BACK OUT, A CRISIS OF NEW PROPORTIONS LOOMS
BY NATALIA GALICZA
Jody McDonald thought he had his golden years all figured out. He was going to live in a cabin with his wife in Pine Valley, Utah — about an hour west of Zion National Park and only 45 minutes from their current home in St. George — spending the rest of their days nestled among pinyon pine and Engelmann spruce trees. It would make for a peaceful retirement to close out a working life that spanned nearly 50 years. A sense of security he felt was well earned.
His in-laws built the cabin, working side by side with contractors, back in 1990. McDonald and his wife then inherited it from her parents and began renovations about four years ago. He gutted the kitchen and refinished it with knotty alder cabinets and stainless steel appliances. He installed new bathroom vanities, repainted, refloored. It took four years and $70,000 to chisel this dream life out of a family heirloom. When the interior felt right, McDonald worked on the landscaping. The Forest Service felled the too-close cypress and pines to ward off wayward blazes and windthrow. Any others along the perimeter of the property, McDonald trimmed up to the recommended 8 feet. Insuring the cabin had cost his in-laws
around $750 a month, but like any dutiful homeowner, he shopped around for new coverage. That’s when his vision for the future started to crumble.
The first quote reached upward of $1,200. Steep, but doable. Then the provider dropped McDonald after just a few
“THERE’S A MYTH THAT THE INSURANCE CRISIS IS HAPPENING IN FLORIDA, LOUISIANA AND CALIFORNIA, AND THAT EVERYBODY ELSE IS OUTSIDE OF THAT PROBLEM BUBBLE. BUT IT’S HITTING THE HEARTLAND OF THE COUNTRY.”
months. In December, he got a new quote from a different provider for $1,800. “We said, well, we got to do it,” he recalls. “So we did it.” That lasted another two months before a new policy revision bumped the rate up to $4,300 a month. “I’ve done
everything that I could do,” he says. “But I just can’t do this. I can’t do it.”
McDonald couldn’t understand why home insurance for a cabin that’s never had a claim or endured a fire in the 35 years since it had been built had suddenly ballooned to more than five times what previous owners paid less than a decade ago. He never got a reason, either. At least not from his insurers. When he talked about it with neighbors or searched for clues on community forums, he realized how many other people — in a sleepy mountain town hundreds of miles from the dangers of rising waters on the nearest coastline — could no longer afford to insure their homes. The few who can afford insurance are likewise left in the lurch, with providers pulling out of areas deemed “high risk” in droves. Across the country, home insurance is the next big crisis to wallop Americans. The Consumer Federation of America, a nonprofit that focuses on consumer insight research, reports that the average homeowner saw their insurance premiums rise by 24 percent between 2021 and 2024. That increase means more and more homeowners can’t pay their premiums. So much so, the
THESE DAYS, THOSE WHO CAN AFFORD INSURANCE ARE LIKEWISE LEFT IN THE LURCH, WITH PROVIDERS PULLING OUT OF AREAS DEEMED “HIGH RISK” IN DROVES.
Treasury Department found that in 2022 alone, insurers dropped at least 10 percent of their policies in more than 150 ZIP codes. “There’s a myth that the insurance crisis is driven by things happening in Florida, Louisiana and California, and that everybody else is outside of that problem bubble,” says Doug Heller, director of insurance for the Consumer Federation of America. “In fact, what we’re seeing is that the insurance crisis is hitting the heartland of the country quite dramatically.” Especially in the West.
THE DIXIE NATIONAL Forest consists of about two million acres of dense vegetation and scrub thriving in the middle of Utah’s arid high desert. Stretching 170 miles across its southern end, it’s the largest forest in the state. Juniper trees stand sentinel at lower elevations while aspens swath over higher terrain. Some 250,000 acres of the forest is in the Pine Valley Ranger District, while another 150,000 acres in the area consist of federal, state or private ownership — like McDonald’s cabin on the edge of the forest boundary.
That district is designated as a high-risk wildfire landscape by the Forest Service. There are 21 such high-risk landscapes across the West, one in every state west of Kansas besides Wyoming. These high-risk areas are where wildfires are considered more costly or common. That also makes them a place where homeowners typically experience the highest rates of nonrenewal by their insurance providers, when a company opts not to insure a client even if they’re willing and able to pay, usually due to living in an area with an increased chance of disaster. “More and more people are getting dropped and nonrenewed all over the country,” says Amy Bach, executive director and co-founder of United Policyholders, a nonprofit organization that advocates for policyholders. “One of the biggest tension points is that insurers are still pretty much free to decide who they want to insure and who they don’t want to insure.”
One of the reasons nonrenewal rates are rising is that climate change is causing more frequent natural disasters in new
areas, which, in turn, destabilize our insurance and housing markets. Just last year, the National Oceanic and Atmospheric Administration recorded 27 disasters with at least $1 billion in damages, racking up a total price tag of $182.7 billion. More natural disasters mean more companies owe their policyholders money. That includes compensation for big picture calamities like wildfires, but also environmental issues thought to be more benign. A report published by the Senate Budget Committee last year found climate-driven insurance spikes are impacting not just hurricane or wildfire-prone areas, but other inland states — like New Mexico, Wyoming and Montana, which have comparably lower fire risk — because of worsening windstorms, thunderstorms and hailstorms.
Financial fallout and insecurity were once consequences reserved for more extreme environments. But, increasingly, any and all environments are becoming extreme. That makes it near impossible for homeowners to escape the quandary of whether it’s affordable to own property, as well as whether it’s worth it, or even possible, to protect that property. “We’re seeing dramatically higher insurance claims payments going to cover the cost of severe thunderstorms and hail than, say, wildfires or hurricanes,” Heller says. “We don’t have a good market structure to handle the risk management writ large.”
A recent report by the Consumer Federation of America found that Utah has the fastest-growing home insurance premiums in the country, rising by an average of 59 percent within the last three years. Anyone with a mortgage is required by lenders to pay for coverage. Others who own their property outright have the option to leave their homes uninsured. Since McDonald inherited his cabin and doesn’t have a mortgage, he chose to forgo insurance after his rates climbed out of reach. While more affordable now, that choice still leaves him vulnerable, without any monetary support in the event of a natural disaster or property crime. “Hopefully I haven’t made the
wrong decision,” he says, unsure whether he’ll go through with those retirement plans in a few years now that he doesn’t have a safety net. “What about these people that have a mortgage, that don’t have the ability to say they’re not going to insure it? They can’t afford it. Maybe they’ll try to sell their property, but when people find out how much they want for insurance, people aren’t going to buy it. It’s just a brutal thing that’s happening. I look at it as pure evil.”
Already, it’s estimated that more than 100 million households — 74.9 percent of households nationwide — can’t afford to own a median-priced home. When home insurance premiums skyrocket and prospective owners can’t afford them either, it further deters home ownership. Insurance providers dropping policies in high-risk areas accomplishes the same effect. When both of those issues dovetail, what’s left is a fallout that the Senate Budget Committee warns will plunge property values and cause a market collapse similar to the housing crash of 2008.
Unlike other financial catastrophes, the home insurance crisis is one that even wealth won’t solve. Regardless of the ability to afford coverage, private companies are making the collective decision to curb risk by dodging entire swaths of the country altogether. “They’ll take your premium year in and year out, tell you it’s fine to live there, and then suddenly, on a dime, these companies change. They say, forget it,” Heller says. “If we don’t take this as a national crisis for our economy, home ownership will become more unsustainable.”
FRUSTRATED HOMEOWNERS MAY point at private insurers as the arbiters of loss, but even those companies are hemorrhaging cash. In 2023, American home insurance companies lost $15.2 billion in underwritten costs, more than at any other point this century. These losses happen when the sum that insurers pay out to policyholders exceeds the amount earned from charging premiums. Those losses occurred in 18 states — more than a third of the country
— and can largely be chalked up to the damage done by increasingly unpredictable natural disasters. Inflation is at play here, too, making building materials more expensive, deepening the costs of payouts to policyholders looking to rebuild after enduring disaster.
Yet, aside from the climate-induced issues rendering the current home insurance system a loss for both insurance companies and homeowners, there are logistical hurdles to creating solutions.
Property insurance is regulated at the state level, which leaves federal agencies largely powerless to offer oversight. According to the Library of Congress, there are no federal regulators of insurance like there are for banking and securities. States have
WHAT’S COMING WILL PLUNGE PROPERTY VALUES AND CAUSE A MARKET COLLAPSE SIMILAR TO THE HOUSING CRASH OF 2008.
been left to manage the industry since 1945. While those regulators have done little to intervene so far, some are trying.
Two years ago, Colorado became the first state in four decades to create a Fair Access to Insurance (FAIR) plan. The FAIR plan acts as a safety net for high-risk homeowners who are unable to find private insurance. Private insurers in the state pool money that funds the plan, which is then managed by state regulators. It’s a last-ditch effort that dates back to the 1960s, and presently, 35 states offer it as an option. Yet since it’s privately funded, when insurance providers pull out of state markets, it pulls money out of the pool and takes compensation out of the hands of homeowners. For states like California, which had to issue a moratorium to block insurers from fleeing the state after the Los Angeles wildfires burned
through the city in January, that precariousness is in full view. That’s largely why it’s considered “an insurer of last resort” — it offers little coverage for a high premium, and is subject to much of the same threats that private companies face.
When even the safety net falters, states are left to find their own solutions. An analysis by the Mountain West News Bureau found that at least 13 bills have been introduced this year in seven state legislatures across the region to address the crisis. California recently passed a law requiring anyone selling a home to provide prospective buyers with a natural hazards disclosure form detailing potential or past events like wildfire, earthquake damage or flood damage that have impacted the property. Buyers are also increasingly leaning on including contingencies in their offers, so if they are not able to access or afford insurance, they’re able to back out of the deal without consequence. Homeowners in Montana can now request a wildfire risk score for insurers to use while determining whether coverage is available and, if so, at what cost. In New Mexico, a bill to create a “wildfire-prepared” certification program passed to similarly help insurers determine costs and coverage on an individual property basis — rather than lumping entire chunks of cities, counties or states in an untouchable high-risk category. Those solutions don’t necessarily help when the danger is stronger winds and bigger, meaner storms.
They also do little to help homeowners like McDonald, who have already been left stranded by insurance providers. He counts himself as one of the lucky ones: he owns a home without a mortgage, he has the freedom to forgo the costs that otherwise strangle home and business owners out of their assets. Yet as he stares down the barrel of his final working years, his dream of living in a cabin in his final years isn’t so lovely anymore. But the pine and spruce still stand, and his kitchen island is the perfect shade of blue. The cabin sits in Pine Valley, awaiting whatever disaster might come.
RELEASED AT 12:56 A.M., it covered only half a page; it was unsigned; and it dealt a blow to the Trump administration, which had claimed the authority to deport alleged gang members to a prison in El Salvador. “The Government is directed not to remove any member of the putative class of detainees,” the majority wrote, “until further order of this Court.” Two of the justices, Clarence Thomas and Samuel Alito, dissented from the ruling, but the order noted only that a statement from Alito was “to follow.” The Supreme Court almost never publishes anything before dissenting justices have
finished drafting their thoughts. But this case, the seven-justice majority agreed, demanded extraordinary relief.
Notably, all three of Trump’s own appointees to the court — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — sided with the majority. Or, in other words, against him.
The “only explanation,” conservative legal scholar Ed Whelan wrote on X, was that the court “does not trust the Trump administration to abide by its promise” to a lower court. Donald Trump himself quickly responded in a flurry. “THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!” he posted on Truth Social. He called it a “bad and dangerous day for America,” arguing that the ruling had effectively allowed “the worst murderers, drug dealers, gang members, and even those who are mentally insane” to commit horrific crimes.
It’s hard to know how seriously to take anything Trump posts on social media. He posts often, and furiously, and his statements rarely reflect careful legal reasoning. By now, even his most ardent supporters know better than to take each post at face value.
And yet, the episode did point at something deeper: the latest turf war in a simmering feud between Trump and the courts. It also laid bare another conflict that’s received far less attention but may be just as consequential — the uncertain future of the most powerful legal organization in America.
For the past 40-plus years, the Federalist Society has shaped the conservative legal movement, which has been made ascendant by Trump’s nominees at every level of the judiciary. Most notably the Supreme Court, where five of the nine sitting justices are known Federalist Society members, including Gorsuch, Kavanaugh and Coney Barrett, each of whom was cultivated and recommended to Trump by members of the Federalist Society (the society itself doesn’t endorse candidates for the bench).
Yet, since Trump took office for his second term, the Federalist Society has fallen from his favor. Aides close to the president
have said Trump plans to “look beyond the garden-variety Federalist Society choices” for judicial nominations and in May the president posted to Truth Social his dismay with the organization. “I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,” he said. “This is something that cannot be forgotten!” He went on to bash one of the leaders of the Federalist Society, Leonard Leo, who had guided his judicial selections in his first term.
“I was new to Washington, and it was suggested that I use the Federalist Society as a recommending source on judges,” the president wrote. “I did so, openly and freely, but then realized that they were under the thumb of a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions.”
That’s a stunning reversal. The Federalist Society has been a singular lynchpin in the conservative legal movement’s success. Its partnership with Trump during his first term offered both sides a symbiosis: the society could achieve the legal victories once thought nearly impossible (Roe v. Wade would not have been overturned without it), while Trump could take political credit. But now, that partnership may be fraying. To
some Republicans, the society has become little more than a polite debating club — too cautious, too institutionalist, too wedded to procedural limits that feel outdated.
At the height of its power and influence, the Federalist Society — or FedSoc, to many of its members — finds itself at
LEONARD LEO, CO-CHAIR OF THE FEDERALIST SOCIETY’S BOARD OF DIRECTORS, HAS BECOME A TARGET OF PRESIDENT DONALD TRUMP’S IRE.
an unexpected crossroads, and the questions facing it go beyond the president or our current political moment. Among younger members, especially those in law school chapters that remain the society’s lifeblood, there’s a sense that the old
where the pendulum may be beginning to swing in another direction,” Ted Olson, who served under both Reagan and George W. Bush, told the gathering. That energy was rejuvenating, many organizers and attendees remembered.
fights — Roe, originalism, judicial representation — are battles fought and won, and that the new battlegrounds now lie in culture-shaping institutions like media, entertainment and academia.
The question facing the Federalist Society, then, is about both its past and its future. Can it remain true to its original mission — a commitment to interpreting the Constitution according to its original meaning — or must it evolve along with the Republican Party and become something bolder?
CONSERVATIVE LEGAL THOUGHT didn’t exist in the organized way it does today back in 1982. Many young conservatives felt ostracized in the nation’s law schools. But they found allies in a handful of professors at Harvard, Yale and the University of Chicago, and that April, 43 years ago, they organized a meeting at Yale between them and other right-of-center officials in the Ronald Reagan administration.
Over three days in New Haven, speakers addressed a litany of concerns that sound familiar in 2025: leftist media, coastal elites and courts that consistently ruled against conservative causes.
They explored a then-emerging theory of judicial interpretation that would soon reshape the Supreme Court. “I sense that we are at one of those points in history
The conference itself, according to “The Rise of the Conservative Legal Movement,” a 2008 book by Johns Hopkins political science professor Steven Teles, was “intellectually ambitious but organizationally modest.” The organizers were not trying to start an institution, but rather a movement to combat a “legal profession … dominated by a form of orthodox liberal ideology.” The conference would provide “an occasion for … a response to begin to be articulated.” The conference did that and then some. The Federalist Society was soon blooming at law schools nationwide.
Since the beginning, the group has welcomed many factions of conservatives, from libertarians to neocons. Those factions find some unity in a stated belief that the Constitution should be interpreted through an “originalist” framework, which usually means trying to understand what the words on the page meant to the public at the time they were ratified, or “original meaning.” How are those determinations made, given that most of the Constitution was written hundreds of years ago and the public that ratified it is long dead? That’s where legal scholarship comes in. And that’s where debates erupt, because the original meaning isn’t always clear. And because to critics, the approach provides convenient cover for judicial interpretations that support conservative policies.
The Federalist Society does not officially
advocate for or against any policies, liberal or conservative. If it has a position on anything, it is that the courts should state what the law says, and not what a given judge believes or wishes or hopes it ought to be. The society does not file briefs, nor participate in litigation. It does not advocate so much as it facilitates. The society’s early leaders chose, Teles writes, to act as “intellectual and network entrepreneurs” whose goal was to “deepen the character of legal thought in conservative circles.” By hosting debates at college campuses across the country — and, later, through professional chapters — the society could effectively recruit like-minded law students and professionals; expose them and the legal establishment to conservative legal ideas; and sharpen those ideas over time. Along the way, conservative legal thinkers could network and strengthen the movement. Even liberals and leftists are often well represented in Federalist Society events. “You are more likely to convince people of your viewpoint,” one founding document says, “if they feel the other side has been given a fair hearing.” And convincing new converts, rather than sermonizing to the base, was always the goal. “It wasn’t just a conservative professor coming to preach. It was a conservative or libertarian professor coming to engage a liberal professor, or a socialist professor,” Princeton law professor Robert George, a longtime FedSoc member and leading conservative intellectual, told me. “I thought that was a very, very good thing.” The result, over time, was the total transformation of conservative legal thought into something much more rigorous and acceptable — a narrowly targeted revival. “Transforming the courts,” Teles writes, “required a strategy of elite rather than popular mobilization.”
One of the society’s earliest boosters was Antonin Scalia, who spoke at the inaugural conference and advised the student chapter at the University of Chicago. If originalism were a religious movement, Scalia would be its patron saint. Throughout his judicial tenure, he was a vigorous, outspoken
PRESIDENT RONALD REAGAN ANNOUNCES THE NOMINATIONS OF JUDGE ANTONIN SCALIA (LEFT) TO THE U.S. SUPREME COURT AND JUSTICE WILLIAM REHNQUIST AS CHIEF JUSTICE OF THE COURT IN 1986. BOTH SCALIA AND REHNQUIST HELPED USHER IN AN ERA OF CONSERVATIVE RULINGS ALIGNED WITH THE FEDERALIST SOCIETY.
opponent of the “living Constitution” — then the mainstream legal view, which holds that constitutional interpretation can be flexible to evolving standards and norms. “The Constitution that I interpret and apply,” Scalia once said, with typical flair, “is not living but dead.” He was appointed to the Supreme Court by Reagan in 1986 and became an avatar for the Federalist Society and its views. However, some of his contemporaries did not share his enthusiasm.
John Paul Stevens, appointed by Republican Gerald Ford in 1975, and David Souter, appointed by George H.W. Bush in 1990, went on to become two of the most reliably liberal members of the court. “No more Souters” became a Republican rallying cry. Scalia’s fellow Reagan appointees Sandra Day O’Connor and Anthony Kennedy were also less reliably conservative than many expected, leading to one judicial humiliation after another for conservatives. Among the most memorable came during a landmark 1992 case in which Stevens, Souter, O’Connor and Kennedy all voted to maintain nationwide abortion access in a contested 5-4 decision. But Scalia, who dissented in that case, was the beginning of a new kind of
conservative judge that promised to rectify past misfires.
During Trump’s first term, FedSoc membership was basically a prerequisite for Republican nominations to federal courts. He specifically thanked the society for helping him vet his judicial appointments. “Trump’s appointees to the Supreme Court have allowed the conservative legal movement to realize so many of its longtime goals,” says Ilya Shapiro, a scholar at the Manhattan Institute and longtime society member. He cites the overturning of Roe v. Wade; the end of affirmative action; increased Second Amendment protections; and more. “It’s really breathtaking,” he adds. “The fruition, finally, after so many decades of pounding your head against the wall.”
Even Justice Elena Kagan, a Barack Obama appointee and staunch liberal, has quipped, “We’re all originalists now.” She did so in jest, later calling her remark “that stupid sound bite that has been hanging over my head.” She meant that the framers understood the Constitution as something that should change over time as views change, which in her view is a truer form of originalism. But the incorrect
reading hints at a bigger truth: Originalist interpretation is basically a requirement for today’s federal courts. And Americans largely have the Federalist Society to thank for that — along with the new battleground that has come with it. “The society’s activities have injected competition into the legal profession,” Teles writes in his conclusion about FedSoc, “but not, at least for now, a new establishment.”
Seventeen years later, liberal legal theories still dominate law schools, but the courts have been conquered at almost every level — and certainly at the highest. Roe v. Wade, that pillar of conservative opposition for decades, has fallen. If we’re not living in a new establishment, we’ve at least entered a new legal era. One where FedSoc has to start playing some defense. One where it must evolve. “I think that the Federalist Society has been at a crossroads for some time,” says David Lat, a legal journalist and longtime society observer who authors a Substack called Original Jurisdiction. “Roe v. Wade was a very unifying force for the conservative legal movement. But once that goal was achieved, now people need to figure out, ‘Where do we go next?’”
THE FEDERALIST SOCIETY’S founding president, Eugene B. Meyer, recently stepped down after 42 years. His 44-year-old replacement, Sheldon Gilbert, is much younger, and purposely so. A Latter-day Saint with roots in Idaho and Utah, Gilbert is known for his disarming charm across ideological lines and his love of Olive Garden; a custom-made sign in his office declares, “Limited government. Unlimited breadsticks.” (Through a spokesman, Gilbert declined an interview request.) Leo, the Federalist Society’s board of directors co-chair currently in Trump’s crosshairs, explained that Gilbert’s task will be to navigate “the generational change the society is poised to begin while preserving the society’s core assets and commitments.” The question, in the political era of Trump, is whether this new era for the conservative legal movement can actually do both.
Trump’s fallout with FedSoc goes back to January 6, 2021, when a Federalist Society practice group leader and law professor named John Eastman implored “stop the steal” supporters to lean on Mike Pence to refuse electoral certification. “Anybody who is not willing to stand up and do it does not deserve to be in the office,” he said of Pence. “It is that simple.”
It was not that simple to some fellow members. Among them was Jeremy Rosen, a former Trump judicial nominee and former president of the society’s Los Angeles chapter, who sent an email to the organization’s leaders two days after January 6, asking for big changes. “I think that the Federalist Society must take a stand to remove anyone from leadership and to take away the legitimacy of our public forums to anyone who participated in this attack on the rule of law and our Constitution,” he wrote, clearly referring to Eastman. “If we cannot take that stand, then what have we been fighting for all of these years?”
Over the next four years, Trump’s many appeals to the federal judiciary and the Supreme Court to grant him electoral relief went nowhere. Privately (and on Truth Social) he has expressed frustration that judges appointed by Republican presidents, and
those he appointed himself, did not rule in a way that benefited him. His surrogates have, at times, been more blunt.
“The Federalist Society doesn’t know what time it is,” Russell Vought, now director of the Office of Management and Budget, told The New York Times in 2023. He argued that elite conservative lawyers refused to step up when it mattered most, and that Trump 2.0 will not make the mistake of partnering with them again. With the Republican Party more broadly moving in that direction — one that prioritizes action and advocacy over debate and restraint — the Federalist Society can either stick to what’s worked in the past and hope it returns to favor, or it can get on board for what Trump’s allies see as the future of the movement.
“I think one of the challenges for the leadership of the Federalist Society is, does it continue to maintain the big-tent philosophy?” says University of Utah law professor Paul Cassell, who advises the school’s Federalist Society student chapter. “I think it would be unfortunate if there was a litmus test where you’ve got to wear a MAGA hat to be in the Federalist Society” — or vice versa. What’s made FedSoc special — and effective — for so long, he argues, is its willingness to challenge and be challenged. Rosen, who has been involved with the society for 25 years, agrees. “We don’t need another advocacy group. We need the Federalist Society to promote debate and discussion including the wide range of conservative and libertarian legal thought,” he told me in an email. “And we need to empower people to reach their own conclusions on the difficult issues facing our nation.”
One of the challenges facing the Federalist Society is how to mediate generational change. An animating concern of its founding generation was the threat of judicial activism and the rise of an unelected administrative state. And with each wave of new law students come fresh ideas about what should animate the future of conservative legal thought, adds Michael Fragoso, a FedSoc member and former chief
counsel to Senate Republican leader Mitch McConnell. Such debates are often fruitful, Fragoso explains, pointing to the Chevron doctrine, a longtime shibboleth among conservative attorneys.
The Reagan-era Chevron doctrine — which directed courts to defer to executive agencies in interpreting ambiguous statutes — was seen by conservatives at the time as a necessary check on liberal judges. But, over time, many conservative lawyers inside FedSoc came to see Chevron as a double-edged sword. By empowering the executive branch, Chevron also enabled sprawling regulatory regimes that often advanced progressive agendas. What began as a conservative innovation ended up expanding the power of the administrative state — exactly the outcome conservatives would have hoped to avoid. The Supreme Court overturned the doctrine last year. Cases like Chevron, or other battles that preoccupied earlier generations, feel increasingly abstract. Roe v. Wade has been overturned. Conservative legal minds dominate the federal judiciary. “We’re not the minority anymore,” says society member Oramel H. Skinner, a former solicitor general of Arizona.
For law students and young attorneys — the lifeblood of the Federalist Society — the front lines have shifted. The concerns aren’t confined to courts but extend to the culture at law firms, universities, tech companies and corporate boardrooms where they believe ideological conformity and DEI mandates have chilled speech and squeezed out conservative thought.
In that context, Trump’s posture toward elite institutions often resonates, even if debates continue over tactics. His second-term executive orders have taken aim at what some conservatives see as progressive bias in Big Law, for example, leading to settlements in which firms pledged to make their pro bono work more bipartisan. Young lawyers in the society see that as a win, says Skinner. They believe conservatives can use the law to push back against the cultural orthodoxies of corporate America — and
they’re interested in how legal power can be leveraged not just in courtrooms, but across institutional life.
“The Federalist Society isn’t a monkhood or self-propagating feudal barons,” Skinner says. “It’s a place where each generation of conservative lawyers gather to refine their thinking about the most pressing legal questions of the day.”
This generational shift — from more procedurally focused conservatism of the past to the institutional questions of the present — may define the society’s future. For FedSoc’s founders, success meant reining in judicial activism. But for the next generation, it may mean something more ambitious.
THE FEDERALIST SOCIETY has faced frequent questions from its political rivals. Critics on the left have consistently accused its originalist underpinnings of providing intellectual cover for conservative causes. When the Supreme Court’s originalist majority debated whether the president should be granted very broad powers to avoid criminal prosecution under the banner of presidential immunity in July 2024, the liberal dissent spelled out this line of thinking. “The majority thinks he should,” Justice Sonia Sotomayor wrote, “and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the president above the
from multiple fronts within the conservative movement. Starting with anti-Trump conservatives, who tend to agree with Sotomayor’s line of thinking, particularly on the presidential immunity ruling. “At this point, at this Supreme Court, originalism is a dead letter, to be resurrected and employed only when it suits the court’s purposes,” Michael Luttig, a former judge appointed to the federal bench by George H.W. Bush, told NBC News following that ruling. But their problems with the court’s selective application of originalism — and with the Federalist Society — run deeper.
In an op-ed published by The New York Times in November 2023, Luttig joined Barbara Comstock, a former Republican congresswoman from Virginia, and George Conway, a onetime Republican operative who has dedicated most of his recent career to opposing Trump, in calling out the Federalist Society directly. FedSoc, they wrote, served a “principled role” by connecting young conservative lawyers and advancing conservative legal scholarship. “But the Federalist Society has conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration,” they continued. Especially regarding Trump’s claims of election fraud. “You have some members or former members of the society who believe that Trump is a big threat
law.” Josh Blackman, a law professor at the South Texas College of Law Houston, sums up the prevailing criticism of the Federalist Society in particular this way: “Critics on the left,” he wrote in December, “see FedSoc as a force of evil.”
That’s not new. But what is are strains of criticism toward the Federalist Society coming
to the rule of law, and they would like the Federalist Society to take a more vigorous stance on that,” says Lat, the legal journalist.
Yet a different strain of criticism, coming from the right’s most pro-Trump factions, alleges almost the exact opposite problem: The Federalist Society and its members didn’t go far enough to defend Trump’s
election claims, among other policy proposals. Now is a time to get on board with supporting the future, they argue, rather than falling back on debate, deliberation and adherence to an originalist bent. In the same New York Times piece in which Vought accused the society of not knowing “what time it is,” reporters suggested that following “the refusal by the group’s most respected luminaries to join Mr. Trump’s efforts to overturn the 2020 election,” the Federalist Society “became a slur for some on the Trump-aligned right, a shorthand for a kind of lawyerly weakness.” This faction “believes that the Federalist Society is too establishment. It’s not populist enough. It doesn’t reflect the will of the voters who voted Trump back into office,” Lat told me. “Those are the warring camps. And so the Federalist Society faces a challenge.”
Blackman, who was recently appointed by Trump to the newly established Religious Liberty Commission’s advisory board, has argued that the Federalist Society’s long record of favoring moderation and restraint should be questioned. “This jurisprudence was a natural choice when originalism and conservatism were minority viewpoints on the Supreme Court,” he wrote. “But now, and for the foreseeable future, the roles have reversed. Judges with courage have more cachet than those seeking passive restraint.” He quoted one judge who said that today, the society’s opponents aren’t interested in debate. “It’s a war,” the judge said. “And if it is a war,” argued Blackman, “the battle plans of days gone by may no longer work.”
That doesn’t necessarily mean that originalism no longer works, though it could be threatened under the new paradigm. “If you’ve got results-oriented people — that is, people who don’t really care what the law is; they just want a certain result — you can abuse any theory,” George, the Princeton professor, told me. “But I think the answer to bad originalism is good originalism. … Any judge worth his salt should be able to point to some cases where, ‘Gee, I wish that the law were different. I wish I didn’t have to rule this way. But darn it, it’s what the law
is, and my job is not to make policy.’” That view helps counter critics who claim the Federalist Society is a laundering operation for sneaking conservative policy into law through the courts. But who really are the “results-oriented people” in today’s courts?
Trump’s opponents are unequivocal. “The legal landscape has deteriorated to a degree we failed to imagine,” Luttig, Comstock and Conway argued, “with Mr. Trump and his allies explicitly threatening to upend fundamental tenets of the American constitutional system.” From this side of conservatism (and from the left) comes the thinking that it is Trump who will bend the rule of law to his will and his purposes, originalism be darned. But other conservative thinkers suggest the true problem is actually the courts, and especially the Supreme Court, which has strayed from its originalist mission under Chief Justice John Roberts. “As Roberts continues to lecture Trump about weakening the rule of law,” Blackman argued in May, “the chief should realize he shares in the blame.”
It is Roberts, Blackman continued, who has politicized the judiciary to the point that trust in the courts has reached an all-time low. “The greatest check on the courts can only be the widely held belief that the court is not ruling based on politics,” he wrote. The court needs to recommit to originalist
fit into all this? Shapiro, the Manhattan Institute Scholar, believes that to implicate FedSoc as either too unwilling to condemn Trump or too unwilling to support him fundamentally misunderstands the organization’s core function. “It would be a mistake for FedSoc to get into advocacy and activism. There are plenty of those kinds of organizations that do that work,” he told me. “FedSoc facilitates exchanges of ideas, professional development, things like that. And it’s very good at that, and it should continue doing that.” It’s still a mission that’s working; the proof, he adds, is in the nominations.
Despite the president’s recent complaints about the Federalist Society, his first five judicial appointees in his second term all have FedSoc ties. They might fit a different profile than past nominees, chosen more for their willingness to fight and show backbone than for originalist philosophy and scholarship, but their enduring affiliations with the society illustrate how deep its roots run in different factions of the conservative legal movement. “I doubt they’re going to be looking for people who are not members of the Federalist Society,” Shapiro added, “because I think to this day, not being a member of FedSoc is a bit of a red flag.” He’s not opposed to the society’s evolution; frontiers like an enhanced digital media presence, for example, still need to be conquered.
principles, this thinking goes, rather than compromise for its own sake. “If people believe the judiciary is simply a mediator that weighs political compromise, then the courts cannot long endure.”
So how does the Federalist Society itself
But Shapiro’s idea of evolution is about image rather than mission. And right now, some other conservatives are concerned about the mission itself. “I worry that the celebrated approach that worked to climb the sunrise side of the mountain may lead
JUSTICE DEPARTMENT
ATTORNEY HARMEET
DHILLON REPRESENTS
A NEW GENERATION OF MISSION-DRIVEN LAWYERS
UPHOLDING CONSERVATIVE VIEWS OF THE LAW.
to (the Federalist Society’s) decline on the other side,” Blackman wrote. Now, rather, is a time for change and reinvention. “What is that new approach? I do not know,” he continued. “However, maintaining the status quo is not sustainable.”
FROM A SPREAD of pastries, parfaits and drums of Chobani, a group of chitchatting men and women in coats trickled through gilded doorframes into the grand ballroom of The Mayflower Hotel in Washington, D.C., just four blocks from Lafayette Square and the White House. They’d come in early May 2025 for the Federalist Society’s 13th annual “Executive Branch Review Conference” — an ideal barometer to assess where the organization’s “status quo” stands amid a string of discussions on presidential power. A wide-shouldered man in a blue suit stepped to the lectern to get things started. “No doubt, since January, there has been much to discuss each day — often several times a day,” he said, to a chuckle from the crowd, “about the Trump administration’s efforts to remake the modern executive
branch and the administrative state.” From there, the event included spirited, contentious, sincere discussions on issues from injunctions to removal powers to DOGE, with MAGA and anti-Trump factions represented throughout.
During the DOGE panel, for example, former Bush official Kristine Simmons argued that as far as she could see, the department’s approach was wasteful, untargeted and unlikely to actually save any money. She was supportive of hard-working civil servants, and she looked forward to receiving some enlightenment by the rest of the panel as to why she was wrong. Hans von Spakovsky seemed pleased to oblige. A senior legal fellow at the Heritage Foundation who wrote the Project 2025 section about election reform, von Spakovsky favored DOGE’s chainsaw approach outright, and he made his case for it with language that sounded familiar to anyone fluent in MAGA-speak. He referenced “The Swamp” and the need to drain it multiple times; cited The New York Times from “back when it was a real newspaper and not a propaganda broadsheet”; and spoke of the abominable bureaucrats who “infest” the federal government. Both bore impressive Republican credentials, yet they found themselves very far apart.
The day’s discussions built, however, to a keynote address by Harmeet Dhillon. She was recently confirmed to lead the Justice Department’s office of civil rights. A report in The Wall Street Journal ranks her “among Trump’s staunchest legal allies,” largely because of her efforts to assist the president’s election challenges. Taking the stage wearing a lime-green blazer, she outlined her priorities — combatting antisemitism; limiting transgender participation in sports; fighting against wokeness and for religious liberty — with impressive precision and enthusiasm. Several folks seated near me muttered about how impressive she sounded. But her speech made it very clear why The Wall Street Journal reported “widespread agreement that (her approach) is unconventional.”
Dhillon, taking cues from Trump’s own
approach, has sought to pull every lever at her disposal to advance the president’s goals. She said as much in an early memo to staff. “The zealous and faithful pursuit of this section’s mission requires dedication of the section’s resources, actions, attention, and energy to the priorities and objectives of the President,” she wrote. Her speaking at a Federalist Society gathering, then, illustrates the group’s inherent tensions. It’s a debate society. A networking club, first and foremost, yes. But it isn’t just that, and never has been. It’s a reflection and incubator of conservative culture more broadly. And given FedSoc’s recent fracture with the Trump administration, Dhillon’s keynote could suggest the potential for a reconciliation. “It does reflect the fact that the society continues to be very concerned about access. They want to still have a seat at the table,” Lat says. “So it is probably smart to have Harmeet Dhillon there. And the fact that she accepted the invite is good (for the Federalist Society), because maybe there’s some other speakers in the Trump administration who would not have.”
The address itself explained her priorities with the Justice Department, but it was mainly a recruiting pitch. “We’re at a ‘fork in the road’ in the conservative movement,” she told the crowd at The Mayflower, borrowing a preferred phrase from DOGE. She tried selling young Federalist Society members on forgoing the path of least resistance — prestigious clerkships and major firms and second homes (even though she has a second home, she joked, so no shame in that) — in favor of service to upholding conservative principles in the law and “defend(ing) the most vulnerable in our nation.” She charted the future as a choice between the way things have been and a new, mission-driven era.
At the conclusion of her speech, Dhillon praised Trump for “restoring balance” to civil rights enforcement. It’s a thrilling time, she said, to be working for the cause of conservative legal goals. “And,” she added, “we’re just getting started.” The crowd offered a rousing ovation.
AMOMENT CRISIS? OF
THE PHRASE ‘CONSTITUTIONAL CRISIS’ IS EVERYWHERE. BUT IS IT ACCURATE? THREE EXPERTS WEIGH IN ON WHETHER OUR SYSTEM IS BREAKING — OR JUST BENDING UNDER THE WEIGHT OF OUR POLITICS
BY THOMAS B. GRIFFITH, ILYA SHAPIRO AND NOAH FELDMAN
ILLUSTRATION BY AAD GOUDAPPEL
THE SPECTER OF A CONSTITUTIONAL CRISIS
HAS HAUNTED MORE than one American presidency. From the Civil War to Bush v. Gore, moments of institutional stress have provoked warnings that the Constitution itself might be faltering. In recent years, that phrase — “constitutional crisis” — has become a staple of the national conversation, debated so often in op-eds, podcasts and cable news segments that it risks becoming cliché. But what does a true constitutional crisis actually look like? And are we living through one now?
In this cover package, we asked three legal thinkers — each with a distinct worldview and constitutional philosophy — to wrestle with that question. Their answers are surprising, provocative and not uniform.
Former federal judge Thomas Griffith offers a deeply personal reading of the crisis.
After decades working within the system — as Senate counsel, appellate judge and teacher — he’s come to see the Constitution’s most radical promise not in its checks and balances, but in its blueprint for unity. Griffith argues that the true constitutional
emergency isn’t institutional overreach — it’s toxic polarization. And the framers, he believes, left us a roadmap out.
Ilya Shapiro, of the Manhattan Institute, challenges the premise altogether. What some interpret as crisis, he argues, may be the product of a hyperpolarized political culture now overlaying — and distorting — judicial interpretation.
Noah Feldman, a Harvard law professor and scholar of constitutional history, looks at the question through an unexpected lens: Latter-day Saint theology. He finds in that religious tradition not only a belief that the Constitution is divinely inspired, but a moral imperative to defend its protections for all flesh — citizen and noncitizen alike — especially in moments of strain.
Together, these essays don’t deliver a tidy answer. They offer something better: a serious and conflicting set of diagnoses from minds deeply immersed in the Constitution’s design and purpose. The result is a portrait of a system under pressure — and a debate about where we go from here.
FRAMERS IN THE WE TRUST
AFTER DECADES STUDYING THE CONSTITUTION AS A LAWYER, JUDGE AND TEACHER, I FINALLY SAW WHAT THE FRAMERS WANTED MOST — NOT DOMINANCE, BUT UNITY. IT MIGHT BE THE KEY TO SAVING US
BY THOMAS B. GRIFFITH
I MISSED IT. Although it was always right before me for decades, I totally missed the most important purpose of the Constitution.
I’ve been an eager student of the American Constitution since high school. I dutifully and happily carry my pocket copy of the Constitution with me wherever I go. Though not a scholar, I read what the best scholars of the Constitution have to teach us about this remarkable document. In my spare time, I listen to podcasts and read books and articles about the Constitution. In my legal career, I’ve been the chief lawyer for the United States Senate, a judge on the U.S. Court of Appeals for the D.C. Circuit, and currently am a lecturer in law at a law
school. Each of these positions required that I study the Constitution.
And in my study, I had always assumed that the Constitution was created to protect our rights — and it does — and to create a federal government of enumerated and limited powers — and it does. But what I had not realized until recently is that an even more fundamental purpose of the Constitution and the chief aim of its drafters in 1787 is to show us something about which its framers cared deeply and should speak to us with great force today: how to get along with people with whom we disagree. In other words, the Constitution can show us how to get out of the mess we are in.
Add me to the list of those who argue that the nation is facing a constitutional crisis. In fact, the crisis I see is the most serious threat to the Constitution since the Civil War. But this crisis is not about the power of the president or the roles of Congress and the courts. It’s not about a threat to the freedom of speech, the free exercise of religion, or equality of opportunity. Those are vital principles and precious rights about which we must always be vigilant. The crisis that threatens the Constitution is the toxic political polarization that has beset the nation in recent years. Ironically, much of that polarization is driven by people who think that they are defending the Constitution, but who miss its primary purpose the way I had. When their zeal is fueled by contempt for those with whom they disagree, their words and actions become a threat to the Constitution.
Social science research supports what we have all experienced firsthand. Too much of our public discourse is animated by contempt. As Arthur Brooks notes, “Political scientists find that our nation is more polarized than it has been at any time since the Civil War.” Recent surveys show that the level of enmity between Republicans and Democrats in America today approaches the levels between Protestants and Catholics during the Troubles in Northern Ireland and between Palestinians and Israelis today. We aren’t
accustomed to think of ourselves in that company, but here we are.
Over 70 percent of Republicans think that Democrats are “immoral.” Over 60 percent of Democrats think the same of Republicans. Such contempt is a cancer on the body politic. As the late conservative columnist Michael Gerson noted, “(The Constitution) is designed for vigorous disagreement. It is not designed for irreconcilable contempt.”
The social psychologist Jonathan Haidt, not one prone to apocalyptic forecasts, predicts, “(T)here is a very good chance that ... we will have a catastrophic failure of our democracy.” The reason? “We just don’t know what a democracy looks like when you drain all trust out of the system.” Actually, we do know what that looks like: the January 6 storming of the Capitol.
But there is good news. A large majority of Americans are tired of this toxic polarization, and there is a way out. In fact, the Constitution itself and the way it was created provide a road map forward.
As Yuval Levin points out in his paradigmshifting book, “American Covenant: How the Constitution Unified Our Nation — And Could Again” (the most important
“THERE IS A VERY GOOD CHANCE THAT WE WILL HAVE A CATASTROPHIC FAILURE OF OUR DEMOCRACY. WE JUST DON’T KNOW WHAT A DEMOCRACY LOOKS LIKE WHEN YOU DRAIN ALL TRUST OUT OF THE SYSTEM.”
book on the Constitution I’ve ever read), the Constitution is an answer to the question of how the people of a nation as diverse as ours can act together even though we don’t think alike. The preamble to the Constitution announces its purpose is to “form a more perfect union.” The first third of the Federalist Papers are primarily about how the Constitution can help us achieve unity among people with differing views.
“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.”
And this is done through the structure of the government the Constitution creates. The discussion during the Constitutional Convention in 1787 was primarily about the best structure of the government they were creating and how it might achieve national unity amid diversity. There was precious little discussion that summer about rights. (Fortunately, that would come four years later with the Bill of Rights, the first 10 amendments to the Constitution.)
THINK FOR A moment about the structure of the national government the Constitution creates. It’s terribly complicated. Law is made by the common action of three different institutions — the House of Representatives, the Senate and the presidency — chosen by different groups of people at different times. Anyone who has worked for the passage of a bill will attest to how difficult it is for a proposal to run this gauntlet and become law. This system is not built for efficiency. It is built to slow down proposals in hopes that any law that emerges will be carefully considered and the result of negotiation and compromise among the elected representatives of “We the people.”
Absent the rare landslide election that sweeps into power a president whose party has large majorities in both houses of Congress, the only thing one wins in an election to the House, the Senate or the presidency is a seat at the negotiating table where you must bargain with others whose support you need. Of course that support comes at a cost. We call that compromise.
The Constitution requires a different type of citizen than had ever been seen before on the world stage. A citizen who is willing to listen to his or her opponents, understand their concerns, and then be
willing to compromise so that, to the extent possible, the various sides can find some common ground. Each side will have to give up something — those in the minority more than the majority. But that’s the genius of the Constitution. As Levin puts it, this complex process of lawmaking “compels Americans to be a little more accommodating of one another. It gives us practical experience in living and acting together.”
The most succinct description I have heard of what the Constitution requires of a citizen comes from President Dallin H. Oaks. Oaks is not only a leader of The Church of Jesus Christ of Latter-day Saints, but he is also one of the most widely respected scholars of the Constitution, having been a state Supreme Court justice and a professor of law at the University of Chicago before taking on his ecclesiastical responsibilities. In remarks on the Constitution that he gave to a worldwide assembly of the church in April 2021, President Oaks declared that “on contested issues, we should seek to moderate and to unify.” In a speech given at the University of Virginia later that year, President Oaks explained that the structure of the government the Constitution created could only work if there was good faith negotiation and mutual accommodation among citizens of differing views. And as he told former federal judge and Dean Emeritus David Levi in an interview in Judicature, it is antithetical to the Constitution to “expect or seek total dominance for our own positions.”
Significantly, this understanding of the purpose of the Constitution also describes the way it was created in the first instance at the Constitutional Convention in the summer of 1787. Those who created the government that requires good faith negotiation and mutual accommodation practiced what they preached.
By July 1787, it appeared that the work of the convention would fail. No agreement had been reached, and there was serious talk of delegates leaving for home. And yet by September, the delegates had cobbled together a Constitution. So unlikely was this
turn of events that one popular history of the convention is titled “Miracle at Philadelphia.” I am a Christian, and I believe in miracles. But my understanding is that a miracle is an event that defies rational explanation, such as the parting of the waves during the exodus of the children of Israel from Egypt, or the resurrection of Jesus. By
And there was much socializing among the delegates that summer. At key points in the summer, when tensions among delegates were on the rise, Benjamin Franklin threw lavish parties for them at his home and brought out his fine stock of port wine, which was gleefully enjoyed by all. All of this — the rules, the dinners, the parties —
THE CONSTITUTION REQUIRES A DIFFERENT TYPE OF CITIZEN THAN HAD EVER BEEN SEEN BEFORE ON THE WORLD STAGE. A CITIZEN WHO IS WILLING TO LISTEN TO HIS OR HER OPPONENTS.
this definition, no miracle took place in the summer of 1787. We know exactly how the delegates succeeded because George Washington told us. In his letter transmitting the proposed Constitution to the Confederation Congress, Washington wrote, “The Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.” Amity, mutual deference, concession. The delegates in Philadelphia practiced these virtues for the sake of creating a “more perfect union.”
Legal scholar Derek Webb has done a deep dive into the proceedings of the Constitutional Convention to understand what Washington meant by amity, mutual deference and concession. The rules of the convention assumed that if you could gather together a group of people in the same room and have them listen to one another, they would change their minds, and that would be a very good thing. The delegates took their meals together in small groups that had people from South Carolina breaking bread with men from Massachusetts and discovering over time that they had more in common with one another than they had supposed.
created an atmosphere in which the delegates, in the words of George Mason, grew “into some acquaintance with each other” and formed “a proper correspondence of sentiments.” In other words, they became friends who were willing to engage in good faith negotiations and seek mutual accommodations for the sake of unity. But they didn’t reach unity out of the goodness of their hearts alone. They did so because their backs were against the wall. Failure to reach compromise would have posed an existential threat to the new nation. As Washington put it, “the peculiarities of our political situation rendered (this approach) indispensable.”
Is that where we are as a people today? I’m afraid so. That’s the bad news. But here’s the good news. We know how to overcome the toxic polarization that threatens our nation. It’s hard work, and it requires all of us to take to heart President Oaks’ charge, which is the charge of the Constitution itself, that “on contested issues, we should seek to moderate and to unify.”
THOMAS
CLASH A OF VISIONS
IT’S NOT A CRISIS. IT’S A VIBE SHIFT
BY ILYA SHAPIRO
WE DIDN’T GET very far into the second Trump administration before political commentators started wringing their hands about this or that “constitutional crisis” that we’d stumbled into. Pundits took to the airwaves to allege that letting Elon Musk wreak havoc over federal agencies was the end of the republic, while law professors took to the op-ed pages to explain how the lack of due process in the administration’s deportation policy signaled our slide toward authoritarianism. And then ... the laptop class moved on to worrying about their 401(k)s in the face of tariff uncertainty and the political class to squabbling over the budget bill.
So were the crises averted? Did we survive to engage in our tribal fights another day, or is the danger still roiling in the background as the nation teeters on a precipice,
metaphorically approaching midnight like a Doomsday Clock for the rule of law?
The answer depends on what you mean by all these weighty terms. A constitutional crisis is generally thought of as a problem in governmental operations or conflict between branches of power that a country’s foundational law is unable to resolve. Such a crisis can arise when the constitution fails, or is perceived as approaching failure, to give guidance to political actors regarding a contested situation — or those actors simply ignore it.
Sometimes constitutional mechanisms lead to political instability or other circumstances that lead political actors to contest each other’s legitimacy. Such was the case when the 1796 election resulted in a president (John Adams) and vice president (Thomas Jefferson) from different parties, and when Jefferson and his running mate Aaron Burr got the same number of electoral college votes in 1800. The rules were clear, but endangered stable governance, so the 12th Amendment was enacted to separate electoral votes for president and vice president.
At other times, the Constitution is legally ambiguous about an unforeseen circumstance, so a practical resolution — what law professors call “liquidation” — sets the precedent for averting future crises. For example, in 1841, it was unclear when William Henry Harrison died 31 days into his presidency whether John Tyler actually succeeded him or just became “acting president.” Tyler took the oath of office and thus settled the matter. (Tyler was politically enfeebled during his term because he lacked a base of support in either party in Congress — he was called “His Accidency” — but that’s a quirk of that era’s partisan flux and not any constitutional weakness.)
A constitutional crisis could lead to governmental paralysis or collapse, democratic backsliding or even civil war. Indeed, by far the greatest crisis the United States ever faced involved Southern states’ rejection of Abraham Lincoln’s policies against the expansion of slavery, instead choosing to
secede. Lincoln in turn refused to recognize the breakaway republic and brought the Confederate states back into the union by bloody force. One hopes that we’ll never have to test that “resolution” of the Constitution’s silence regarding secession.
But constitutional crises don’t have to rise to the level of Ken Burns documentaries. It’s not hard to conjure scenarios about which the Constitution would be ambiguous at best, or which opportunistic politicians would take advantage of to create doubts about the legitimacy of their rivals. Michigan State law professor Brian Kalt wrote a book in 2012 that lays out half a dozen hypothetical crises. “Constitutional Cliffhangers” discusses complications that could arise from:
• A president being criminally prosecuted.
• A president pardoning himself.
• Cabinet members trying to oust a “disabled” president, who then tries to oust them.
• The House speaker and secretary of state fighting for the presidency in the wake of the deaths of the president and vice president.
• An ex-president being impeached.
• A two-term president trying to stay in power.
Some of these don’t sound so fanciful after the political twists and turns of the last couple of decades, really dating back to Bush v. Gore in 2000, which wasn’t so much a crisis as a statistical tie for one state’s electors. But they all involve the office of the presidency rather than how the holder of that office wields his power. Those complaining about President Donald Trump don’t dispute his claim on the White House — this time around — but do accuse him of abusing his powers to the point of governing like the king who forced the hand of the founding generation to declare independence. One could certainly call the American Revolution a product of crisis in the British (unwritten) constitution.
After all, the argument goes, firing agency heads, shuttering USAID, withholding funds that Congress appropriated, reversing environmental regulations by fiat, targeting law firms whose lawyers represent political adversaries, and putting the nation’s leading universities into federal receivership at the stroke of a hostile letter are all examples of an executive acting without any respect for legal or constitutional processes. Add in such things as unilaterally defining terms like “woman” and “gender” across the federal government — plus rescinding not just Biden or Obama executive orders on DEI (diversity, equity, and inclusion), but LBJ’s order on affirmative action — and you have, on this view, a president acting like the dictator he once mused himself to be.
The funny thing about all these examples is that institutional guardrails have held, just as they did in Trump’s first term with regard to the “travel ban” and other things that led to cries of constitutional crisis. Dozens of lawsuits have been filed on a host of issues, with injunctions against some actions and the administration ultimately winning its fair share of rulings. Some of these issues pose open or at least contested legal questions. For example, it’s likely that next year the Supreme Court will overturn Humphrey’s Executor, the 1935 case that insulates the heads of “independent” agencies from presidential control. Other issues are just a manifestation of the “pen and phone” governance patterned by President Barack
executive power. President Joe Biden was judicially slapped down on issues ranging from vaccination mandates and eviction moratoria to environmental rules and student loan forgiveness — and even after the Supreme Court blocked his student loan plan, he kept trying to do the same thing using other statutory workarounds. Biden also, a few days before the end of his term, issued a bizarre declaration that the Equal Rights Amendment had been ratified, which the National Archives promptly rejected.
There may be two novel examples of blatant Trumpian disregard for the constitutional order, but they don’t fit the crisis narrative because of their heterodox ideological valences. I’m thinking of the unilateral pausing of bipartisan legislation requiring the Chinese company ByteDance to divest itself of TikTok — which law survived Supreme Court review — and the “emergency” tariffs levied on the entire world. But even here, presidents of both parties have used the awesome tariff power that Congress delegated to them, with the judiciary’s acquiescence. So all of our constitutional branches seem complicit, but none of that threatens to destabilize the republic (as opposed to our economy) or lead to a cold civil war.
But what about more blatant disregard to the rule of law, such as the treatment of judicial orders regarding the deportation of Kilmar Armando Abrego Garcia or the use of the Alien Enemies Act to deport al-
WHAT WE HAVE ISN’T SO MUCH A CONSTITUTIONAL CRISIS BUT LEGAL MANIFESTATIONS OF THE POLITICAL-CULTURAL “VIBE SHIFT.”
Obama, which accelerated the shift to our current populist moment. You live by the executive order, you die by the executive order. Moreover, as singular an individual as Donald Trump may be, he’s not unique when it comes to pushing the envelope of
leged Venezuelan gang members, or the revocation of hundreds of student visas over speech that the administration doesn’t like? Each of these examples is also legally contestable. For example, can a court order the president or his agents to engage
in diplomacy, even if it wouldn’t be a big lift? Is it showing contempt to argue that a district court lacks jurisdiction when the Supreme Court ultimately agrees that habeas corpus claims must be filed where detainees are held? Can the United States not apply the rules regarding the visa ineligibility of foreigners who espouse certain disqualifying ideologies when those foreigners are already in the country?
Sure, it isn’t helpful to our political culture for a president and members of his administration to show disdain for or call for the impeachment of judges who rule against them. And the coy “after you, my dear Alphonse” dance performed by Trump and Salvadoran President Nayib Bukele in the Oval Office thumbed its nose at the spirit, if not the letter, of the order requiring
the government to “facilitate” Garcia’s return. But there’s been nothing like Andrew Jackson’s exclamation, “John Marshall has made his decision; now let him enforce it!” — which even if apocryphal reflected Old Hickory’s opinion of judicial authority. And how do you weigh Trump’s behavior against attacks on the Supreme Court by the Biden administration — leading both the president and Vice President Kamala Harris to endorse court-packing — and Senate Minority Leader Chuck Schumer’s threats against two justices if they ruled the wrong way on abortion? Or, more recently, Democratic lawmakers’ storming of an Immigration and Customs Enforcement facility and then claiming their arrests were somehow illegitimate?
“They’re all bad” is a fair response, but
“bad” does not a crisis make. A lot of what’s going on in the courts, for example, is procedural skirmishes over the proper scope and appealability of temporary restraining orders, or the propriety of nationwide or “universal” injunctions. The Supreme Court has been remiss in not giving lower courts more guidance on these technical issues — Chief Justice John Roberts’ project to keep the court out of the political discourse has backfired repeatedly — so it was heartening to see it take up the injunction issue, with a decision expected by the end of its current term in June or early July. (That argument was in the context of Trump’s executive order eliminating birthright citizenship for children of people here temporarily or illegally. At least one law professor who worked in the Biden Justice Department has called that order a constitutional crisis in and of itself, but even as the longstanding practice to the contrary is clear, the meaning of the 14th Amendment isn’t.)
In short, what we have isn’t so much a constitutional crisis but legal manifestations of the political-cultural “vibe shift” we’ve been talking about since last November’s election. Courts are still more respected than any other part of government at a time of historically low societal trust, and confidence in the Supreme Court is still high relative to its coequal branches, but that’s despite the historically large difference in opinion by partisanship or ideology.
It’s apparent that Americans — especially American elites — have conflicting constitutional visions, and what we’ve seen lately is the confluence of trends where divergent interpretive theories map onto partisan preference at a time when the parties are more polarized and ideologically sorted than any time since at least the Civil War. There’s no easy way to “liquidate” those kinds of differences.
ILYA SHAPIRO IS DIRECTOR OF CONSTITUTIONAL STUDIES AT THE MANHATTAN INSTITUTE AND AUTHOR, MOST RECENTLY, OF “LAWLESS: THE MISEDUCATION OF AMERICA’S ELITES.” HE ALSO WRITES THE SHAPIRO’S GAVEL NEWSLETTER ON SUBSTACK.
CONSTITUTION THE NEEDS BELIEVERS
IN A TIME OF CONSTITUTIONAL STRAIN, THE THEOLOGICAL UNDERPINNINGS FOR THE U.S. SYSTEM OFFER BOTH WARNING AND HOPE
BY NOAH FELDMAN
AMONG THE MANY fascinating and rich beliefs of The Church of Jesus Christ of Latter-day Saints, I have always been especially engaged by the teaching that the U.S. Constitution is divinely inspired. Perhaps this is because I am, by profession, a teacher of constitutional law. For someone who has dedicated much of his life to studying the Constitution, there is something hopeful in the belief that it is part of a divine plan. When our constitutional traditions and values seem to be faltering, or when they face especially difficult tests and challenges, a degree of faith in the underlying endeavor of constitutional democracy can be particularly valuable.
This is one of those times. Since his inauguration, President Donald J. Trump, sworn to uphold the Constitution, has repeatedly taken unilateral executive actions that federal courts have determined to violate the letter and spirit of our
foundational document and the laws duly enacted pursuant to it. These range from violations of the individual rights of people in the United States to violations of the separation of powers to violations of the rule of law, the underlying principle of the Constitution itself.
To be clear: This is not normal. The challenge to the Constitution, its norms and its values that we are currently facing is without precedent. Many presidents have occasionally taken actions reversed by the courts as unconstitutional. Congress has very occasionally passed laws that were struck down on constitutional grounds. But no previous president has acted similarly, taking scores of actions in a short period of time that, in the estimation of the courts, directly violated the Constitution and the laws.
The question therefore arises: What is the appropriate response to unprecedented challenge to constitutional norms at the highest level of the U.S. government? At the legal level, the answer is relatively simple. Affected parties can and should go to court to vindicate not only their rights, but the Constitution and the rule of law that it embodies. Courts should hear those claims, consider them in the light of the Constitution as it has been interpreted by the Supreme Court, and rule accordingly. Then, all citizens must stand up for the Constitution as interpreted by the courts, insisting that the president and other executive branch officials comply with lawful court orders.
What, though, is the right moral answer to the question of how to respond to unconstitutional conduct and attitudes? To address this question, which is more profound than the legal one, we need to understand the moral basis for the Constitution and its values.
In my view, there is no single moral theory of the Constitution that can be identified as definitively correct — at least in constitutional terms. Even if one believes in a single, unified, true morality, applying it to the Constitution will still be a matter of interpretation in which disagreement
between reasonable people of goodwill is still possible.
I have long been intrigued by one such interpretation, of one moral vision of constitutional purpose, expressed in terms of and grounded in Latter-day Saint doctrine and teaching. That interpretation begins with a universalist, inclusive ethic of constitutional purpose, as opposed to a narrow, nationalist one focused only on U.S. citizens and their interests. From there, it proceeds to the principles of judicial independence and the rule of law, conceived as necessary instruments for facilitating the universal vision.
This vision should be of interest not only to Latter-day Saint believers, but to people like me who do not belong to the faith, but who are committed to constitutional values and want our Constitution to have good moral reasons to exist and to survive.
A good place to start is an important address delivered in April 2021 by President Dallin H. Oaks, first counselor in the First Presidency of the church, delivered during its semiannual general conference under the title “Defending Our Divinely Inspired Constitution.”
First, a quick disclaimer: It is always tricky for someone who is not an adherent of a particular faith tradition to explicate
TO
In presenting the idea of the divinely inspired Constitution, President Oaks focuses not on Doctrine and Covenants 101:80, a very clear and direct statement of the Constitution’s divine inspiration, but another Latter-day Saint scripture (D&C 101:77), which refers to “the laws and constitution of the people, which I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles.”
Here I want to emphasize a remarkable aspect of this verse: its universality. God says he intends the Constitution to protect “all flesh” — not just Americans or citizens of the United States. The resonant phrase “all flesh” is the biblical language most often used to invoke all humanity, regardless of belonging or membership. Consider, for example, Isaiah 66:23: “And it shall come to pass, that every new moon, and every sabbath, shall all flesh come to worship before me, says the Lord.” In Isaiah’s prophetic vision, just one verse after God has promised to make “the new heavens and the new earth,” all humans shall be united as one in the worship of the Lord.
What does this mean in our current moment? It means, I would like to propose, that our Constitution does not simply protect U.S. citizens. It protects “all flesh” who live under
BE CLEAR: THIS IS NOT NORMAL. THE CHALLENGE TO THE CONSTITUTION, ITS NORMS AND ITS VALUES THAT WE ARE CURRENTLY FACING IS WITHOUT PRECEDENT.
a profoundly religious text. I offer my interpretation and application of President Oaks’ teaching in humility and respect for President Oaks and for the church, noting the obvious truth that I can in no way claim my reading is a faithful one, but can only pray that I have captured something of the spirit that, to my mind at least, permeates the speech.
its jurisdiction. That decisively includes noncitizens present in the United States — who themselves have long been held to possess fundamental constitutional rights.
This is a very particular moral reading of the Constitution — one that is universalist and inclusive. It is by no means the only way to read the text or the traditions of the Constitution. The notorious Dred Scott
decision excluded people of African descent from “We the people,” and was overturned only by the Civil War and the Reconstruction amendments. In a 1990 decision, U.S. v. Verdugo-Urquidez, then-Chief Justice William Rehnquist suggested in nonbinding dicta that perhaps constitutional rights afforded to “the people” might not extend to noncitizens in the U.S.
Yet the 14th Amendment specifies that its protections extend to everyone who is a “person.” Thus, rights to life, liberty and property under the 14th Amendment have been held to apply to noncitizens in the United States. Similarly, in 1945, in the case of Bridges v. Wixon, the Supreme Court held that “Freedom of speech and of the press is accorded aliens residing in this country.”
It is beyond the purview of this essay to address technical issues of when and how fundamental rights protections under the Constitution apply to noncitizens. It should suffice to observe that D&C 101:77, as invoked by President Oaks, offers moral justification for the constitutional idea that all humans under the jurisdiction of the United States deserve protection. Views to the contrary are, I think, inconsistent with the moral vision of a Constitution.
The lesson is strikingly relevant. Constitutional protection of noncitizens has become an important and controversial topic under the Trump administration. Noncitizens have repeatedly been the targets of executive action, especially summary deportation without a hearing, that have been challenged as unlawful in the federal courts and found to be unlawful. A morally universal, inclusive Constitution requires, I believe, a deep commitment to protecting all people, not only citizens.
FROM THE UNIVERSAL moral principle, we can move on to the means of effectuating it. In his speech, President Oaks named “five divinely inspired principles.” These are, in brief, (1) popular sovereignty, (2) federalism, (3) the separation of powers, (4) the fundamental protections of the Bill of Rights, and (5) the Constitution as
IT IS THROUGH OUR ACTIONS THAT WE WILL PRESERVE OUR CONSTITUTIONAL REPUBLIC, OR, HEAVEN FORBID, LOSE IT. OUR FALLIBLE HUMAN AGENCY MEANS THAT THE DECISION IS IN OUR OWN HANDS.
the embodiment of the rule of law, not of men.
I find it noteworthy that President Oaks considers the separation of powers to be a divinely inspired aspect of the Constitution. As he notes, “the inspiration in the American convention was to delegate independent executive, legislative, and judicial powers so these three branches could exercise checks upon one another.”
The argument here is powerful and original: According to President Oaks, the contribution of American constitutional thought on the separation of powers is the idea of the independence of the different branches. That independence, according to this view, enables the branches to check one another.
Make no mistake, the independence of the judicial branch is under genuine threat today. Repeatedly, the current presidential administration has either violated judicial orders (according to the federal courts) or come so close to doing so that judicial independence is threatened. At one point, the current president, posting on social media, called for the impeachment and removal of a federal district court judge who had issued a temporary restraining order adverse to the administration’s policy. In response, Chief Justice John Roberts issued a rare public statement explaining that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” Roberts, who cares deeply about preserving the independence of the judiciary, understood the president’s statement as seeking
to intimidate the judiciary, thus undermining its independence.
Last, and perhaps most important, President Oaks argues for the divine inspiration of the core constitutional principle that “we are to be governed by law and not by individuals.”
As President Oaks explains, since ours is a government of laws, “our loyalty is to the Constitution and its principles and processes, not to any office holder.” Whatever any president, including President Trump, may say, government employees and we the citizens ourselves do not owe fealty to the president. Our responsibilities and our oaths run to the Constitution, which is itself the supreme law of the land. This principle, alongside the principle that “all persons are to be equal before the law,” President Oaks writes, comes to “block the autocratic ambitions that have corrupted democracy in some countries.”
This point could hardly be more important for current constitutional conditions. The rule of law, which itself depends in practice on the independence of the different branches of government, exists to protect our freedoms against the power of any one person. The rule of law is intended to block “autocratic ambitions.” The complex of five constitutional values identified by President Oaks as divinely inspired together serve the underlying purpose of the Constitution identified in D&C 101:77, namely the protection of the freedoms of “all flesh.”
Of course, one may accept all President Oaks’ arguments as a matter of political
theory and constitutional principle without also embracing his belief, or the church’s doctrine, that the Constitution is divinely inspired. Such belief is, like other religious belief, very much a matter of personal faith and of the individual’s relationship to the concept of divine inspiration itself. As someone who is not a Latter-day Saint, I have no intention to encourage readers to adopt religious beliefs that they do not already have.
At the same time, I have engaged in the foregoing exegesis of Doctrine and Covenants 101:77 and of President Oaks’ message because I believe, with full faith, that today our Constitution needs all the commitment and assistance it can get. The Constitution today requires support from all sources, human and divine.
It is through our actions that we will preserve our constitutional republic, or, heaven forbid, lose it. Our fallible human agency means that the decision is in our own hands, as the establishment of the Constitution was in the hands of the framers who created the original compact and the all-important amendments that fulfill its promise by protecting liberty and equality. May we be worthy successors to those who came before us. May we leave to our posterity a Constitution that is worthy of the high aspirations we are bidden to fulfill.
NOAH FELDMAN IS FELIX FRANKFURTER PROFESSOR OF LAW, CHAIR OF THE SOCIETY OF FELLOWS, AND FOUNDING DIRECTOR OF THE JULIS-RABINOWITZ PROGRAM ON JEWISH AND ISRAELI
LAW, ALL AT HARVARD UNIVERSITY.
IN THE MOUNTAINS OF MONTANA, PHOTOGRAPHER LAUREN GRABELLE TURNS HER LENS — AND HER TRAIL CAM — TOWARD THE SECRET LIVES OF THE WILD NEIGHBORS WE RARELY SEE BUT OFTEN FEEL
LAUREN GRABELLE HAS ALWAYS PHOTOGRAPHED THE LIMINAL : THE EDGE OF CIVILIZATION, THE SPACES BETWEEN WHERE HUMANS AND ANIMALS LIVE.
in her new photo series, “Deer Diary,” Grabelle invites us into that space once again — but this time, she steps aside and lets the deer take the lead.
Using a motion-triggered trail camera in the Montana backcountry, Grabelle captures what she calls a “collaboration” between photographer and subject. The images are grainy, infrared and startling — deer paused midstep in a clearing, antlers glowing, eyes flaring white in the darkness. These aren’t wildlife photos in the traditional sense. They’re less about animal behavior than presence: what it means to be watched and to watch back.
By placing her camera along game trails and under barbed fences bent by repetition, Grabelle taps into a story older than photography. The deer in these images belong to the same lineage that once appeared in cave paintings and creation myths. They are messengers, omens, sometimes deities. But they are also neighbors, sharing the land just out of sight, often just out of mind.
With “Deer Diary,” Grabelle invites us to slow down and look again. To recognize that the stories we tell about animals are always, in part, stories about ourselves.
JESSE HYDE
2023/11/28 17:13:23 25ºF
2023/08/09 17:20:41 59ºF
2023/11/15 17:14:08 33ºF
2023/10/23 22:32:36 41ºF
2023/11/24 15:58:01 33ºF
2024/01/18 18:16:33 2ºF
FREDERICK DOUGLASS: OLD-SCHOOL ORIGINALIST
HOW ONE OF THE CONSTITUTION’S EARLIEST CRITICS USED ITS LANGUAGE — AND SILENCES — TO FIGHT FOR FREEDOM
BY BRADLEY REBEIRO
NE OF THE enduring stains on the Constitution has been what some see as its justification for slavery. But any close reading of the founding document leaves open to interpretation if the framers ever meant to legitimize slavery, at all. The preamble, after all, unequivocally states:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, ... and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution ...”
The preamble clearly identifies justice and liberty as key elements of the Constitution. Exactly what justice requires and what liberty entails may be debated, but there is
no question that preservation of the two is central to the Constitution’s purpose.
On the other hand, Article 4 has obscure language in Section 2, Clause 3 that doesn’t use the term slave, but the consensus among historians is that it unequivocally relates to the rendition of fugitive slaves — hence the common reference to the Constitution’s “Fugitive Slave Clause”:
“No person held to Service or Labour in one State, under the laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
Why did the drafters of the Constitution opt for such opaque language in Article 4? Why not state: “No slave or enslaved person in one State ... escaping into another ... shall ... be freed ... but shall be delivered up”? That certainly would have removed the ambiguity and left little room for debate. Some respond that what is opaque to us was clear to those that drafted it: Saying “person held to service” was no different than saying “slave.” Others have argued that Gouverneur Morris — a member of the Constitutional Convention’s Committee of Style — deviously altered the language at a late stage in the process to introduce ambiguity. Some have argued that the drafters made a concerted effort to avoid any reference to slavery as an institution to evade legitimizing slavery as an institution under the Constitution.
Regardless of the reason, to one abolitionist the ambiguity’s mere existence would be significant. Frederick Douglass’ life and its relation to the Constitution might be said to revolve around Article 4 and how, if at all, the preamble informs it. Douglass’ first foray with the Constitution was dark, but his view of the document became brighter
with time. Once a “covenant with death,” the Constitution would become a “glorious liberty document.” For Douglass, careful attention to the language of the Constitution, its history and rules of interpretation helps tell the story of why and, perhaps more importantly, how his viewpoint evolved.
DOUGLASS WAS A former slave who became one of the most influential political figures in U.S. history. At the age of 20, he escaped from servitude by impersonating a free Black sailor, traveling from Maryland and ultimately arriving in New York. At this point, Article 4 became more than just words on paper. Douglass was now a fugitive slave who could be returned to servitude upon a claim made by his former owner — Thomas Auld. New York could not shield him. The Constitution provided a means for the evil hand of slavery to claw Douglass back into its vile grasp.
It was in this context that Douglass proclaimed: “The language of the Constitution is you shall be a slave or die.”
1, Section 9, Clause 1 (the “slave trade” clause); and Article 4, Section 2, Clause 3 (the “fugitive slave” clause). Other clauses indirectly protected slavery, such as Article 4, Section 4 (the “Republican Guarantee” or “Insurrection” clause, which provides protection from slave rebellions, for example).
DOUGLASS’ FIRST FORAY WITH THE CONSTITUTION WAS DARK, BUT HIS VIEW OF THE DOCUMENT BECAME BRIGHTER WITH TIME.
Shortly after his escape, Douglass found himself in company with famous abolitionist William Lloyd Garrison, who was known for his uncompromising moral conviction and his zealous advocacy for the enslaved. The Garrisonians, as those who agreed with him were called, had a hard stance against slavery and anything that upheld it — including the Constitution. They frequently referred to the Constitution as a “covenant with death, an agreement with hell,” and burned copies at American Anti-Slavery Society meetings. Though the word “slave” or “slavery” never appears in the document, the Garrisonians relied on James Madison’s “Notes on the Debates in the Federal Convention, May 25, 1787,” originally published in 1840. Madison noted the drafters’ intent to protect slavery through several provisions, including: Article 1, Section 2, Clause 3 (the “three-fifths” clause); Article
Small wonder that Douglass equated the Constitution with slavery and death. The Garrisonians had taught him that the founding document was the creator and preserver of his oppression, providing the necessary link between the North and the South that permitted Southerners to appropriate northern resources in the maintenance of slavery. They used the original intent of the drafters to make their case and were among the nation’s first originalists (more on this term later), the original originalists. Douglass subscribed to the Garrisonian position without reservation. Because of the Constitution, despite his escape to a non-slave state, he was in virtual chains. For this reason, Douglass had a fundamentally apolitical posture toward the Union — any association with the federal government or the federal Constitution would taint the participant with complicity in preserving slavery. But Douglass could not avoid the Constitution altogether. He gained international notoriety in 1845 after publishing the “Narrative of the Life of Frederick Douglass, an American Slave,” an autobiographical account that reawakened the North (and the world) to the atrocities of slavery. Inadvertently, his notoriety put a target on his back for slave catchers, empowered by the Fugitive Slave Clause and the 1793 Fugitive Slave Act to pursue fugitive slaves in northern jurisdictions. This forced Douglass to flee to the U.K.
Eventually Douglass would be able to return home, putting in motion many experiences that set his constitutional thinking on an irreversible path of change. After benefactors in England paid Auld to
WILLIAM LLOYD GARRISON AND HIS FOLLOWERS HELD THAT THE CONSTITUTION PRESERVED SLAVERY, CALLING THE DOCUMENT A “COVENANT WITH DEATH.”
relinquish his legal claim over Douglass, he was now a free man with free ideas. He was no longer persuaded by the Garrisonian approach to the Constitution; he became convinced it was a document dedicated to freedom. Yet his conversion was not immediate. Douglass still cared significantly about the drafters and their intent, which seemed to be pro-slavery in nature. But he became acquainted with other abolitionists who saw things differently. Gerrit Smith — who would become a longtime friend and benefactor of Douglass — believed that the Constitution was anti-slavery in character and that abolition was best achieved through political means. When Smith first approached Douglass with this anti-slavery vision, Douglass was skeptical. He could see the practical effect of adopting an anti-slavery position, to be sure. Douglass lamented the Garrisonian position, which performed the “laboring oar” in advancing the pro-slavery interpretation of the Constitution. The document did not state the word slave or slavery — it needed assistance in carrying the meaning. Why do the South’s work for them? Even so, Douglass could not abandon the
history. As an original originalist, Douglass believed that historical meaning mattered in interpretation. He could not simply discredit the past in favor of construing the text for the abolitionist cause.
Only after careful study and investigation did Douglass satisfy himself of the anti-slavery nature of the Constitution. In
HE BELIEVED THAT THE PREAMBLE CLEARLY INDICATED THE CONSTITUTION’S ULTIMATE PURPOSE: TO PROMOTE JUSTICE AND LIBERTY.
May 1851, in an article titled “Change of Opinion Announced,” published in Douglass’ paper, The North Star, Douglass proclaimed that he now believed the Constitution was an anti-slavery document. He attributed his change of opinion to the study of law, government and legal rules of interpretation. (He gave specific credit to
GERRIT SMITH (STANDING CENTER) WAS A CLOSE FRIEND OF FREDERICK DOUGLASS (SEATED IN FRONT OF SMITH) AND INFLUENCED DOUGLASS’ VIEW THAT THE CONSTITUTION WAS ANTI-SLAVERY. THE MEN ARE PHOTOGRAPHED HERE IN 1850 AT A FUGITIVE SLAVE LAW CONVENTION IN CAZENOVIA, NEW YORK.
Lysander Spooner, Gerrit Smith and William Goodell.) From that moment on, Douglass argued for the anti-slavery Constitution. He proclaimed in perhaps his most famous speech, “What to the Slave is the Fourth of July?” that the Constitution was a “glorious liberty document.”
But what was the nature of this change? Was it merely practical or political? Or did Douglass have a serious change of heart? Certainly, Douglass’ life experiences influenced his changed position, even if only to create a space in his life where he could reconsider fundamental, theoretical questions of law and political society. But there is compelling evidence that Douglass’ new position was more than mere convenience. Tracking Douglass’ method helps illuminate how he arrived at this new understanding of the Constitution.
TO ORIENT DOUGLASS’ transformation in light of modern-day constitutional theory, it is helpful to say a little bit more about originalism and originalists. Originalism, put simply, is the idea that the Constitution has a fixed meaning set at the time of adoption, and that meaning constrains our
FREDERICK DOUGLASS
ARGUED THAT THE CONSTITUTION’S PREAMBLE PROMOTED LIBERTY AND JUSTICE AND THAT THE ENTIRE DOCUMENT SHOULD BE INTERPRETED IN THAT CONTEXT.
understanding of it today. Where the text presents ambiguity, the interpreter uses historical meaning to provide clarity. Originalism’s methodology has changed over time, with many versions used today. But, for purposes of illuminating its relevance to Douglass’ transformation, it is instructive to highlight originalism’s transformation from original intent to original public meaning. Original intent originalism required the interpreter to discover the original intentions of the drafters of the Constitution. What they envisioned at the Constitutional Convention controlled the meaning of the text. Similarities can be seen with the Garrisonians, who focused on James Madison’s notes to convey the proper meaning of language that might otherwise be unclear. The same can be said for Douglass’ early years as an “originalist.”
Originalism evolved, however, as did Douglass. Eventually, originalists moved on from focusing on original intent to original public meaning. The drafters’ intentions mattered less. After all, it was the ratifiers of the Constitution that gave it the force of law, and therefore it was their understanding that mattered. Rather than privilege unspoken or hidden intentions, the interpreter should privilege what the public would have understood the words to mean at the time of adoption. Douglass similarly moved on from motives or intentions kept from the public to a focus on the text that the people adopted.
What, then, of history? Many ratifiers supported slavery or at least tolerated it on some level. It would be hard to argue that the history — irrespective of what was said
or not said at the Constitutional Convention — did not support a pro-slavery reading of the Constitution. Of the 13 original states, only five (Pennsylvania, New Hampshire, Massachusetts, Connecticut, Rhode Island) had passed gradual abolition statutes by the time the Constitution was ratified in 1789. It was not beyond the pale to suggest that the Constitution protected slavery. It is here that Douglass’ interpretive method deviates from originalism, providing a new way to approach history in resolving ambiguities. This new method might be termed “natural rights originalism.” Douglass resorted to historical meaning when resolving ambiguities in the text, but he also put the preamble of the Constitution in play. He believed that the preamble clearly indicated the Constitution’s ultimate purpose: to promote justice and liberty. And the founders’ conception of justice, Douglass argued, was derived from natural rights philosophy. Natural rights are those rights every human possesses in the state of nature, before government. All human beings are naturally free and can act according to their own desires so long as they do not infringe on the freedom of others. When they enter government, they do so based on consent. Consent is valid only to the extent that government protects the natural rights of all individuals. This basic principle immediately contradicts slavery — no human being can properly consent to involuntary servitude. The Constitution had to be read in a way that could be reconciled with its aim: natural rights. It had to be reconciled, where possible, with freedom.
WHILE DOUGLASS’ EMPHASIS on history aligns him in many ways with originalists, his reliance on natural rights principles sets him apart. Like originalists, Douglass relies on historical meaning to resolve ambiguities in the text. But he acknowledges that, when looking at how the people might have understood the text, there will always be more than one plausible meaning. People read texts differently. Even more so in law, and particularly the Constitution, where
it set out many principles and standards, which have much more elasticity in meaning than, say, clear rule statements. Interpreting, for instance, the scope of Congress’ powers by discovering what is “necessary and proper” is not as determinate as the requirement that the president shall be at least “the Age of thirty five years.”
To be sure, some meanings might be more plausible than others; some meanings might have more consensus or support, for instance. This is what an originalist today would do: look for that meaning which is not only plausible but has the most historical evidence of consensus among the ratifiers. Alternatively, when faced with more than one plausible interpretation, Douglass
THE CONSTITUTION HAD TO BE READ IN A WAY THAT COULD BE RECONCILED WITH ITS AIM: NATURAL RIGHTS. IT HAD TO BE RECONCILED, WHERE POSSIBLE, WITH FREEDOM.
argues the interpreter must choose the meaning that best reflects natural rights principles. It matters not whether a majority preferred one reading over another. The formula for Douglass’ method was: What are the plausible readings? What is the underlying natural right principle? Which of the plausible readings best reflects the natural right? The answer to the third question provides the correct interpretation. Interpreting the Fugitive Slave Clause provides the clearest comparison between the two approaches. Imagine the following legal dispute: Does Article 4, Section 2, Clause 3 refer to fugitive slaves? An originalist today would start with the text: “No person held to
Service or Labour.” Immediately, ambiguity arises: The word slave is not to be found. A historical inquiry would reveal that persons “held to service or labour” referred to slaves; evidence from the convention and ratification debates would affirm this. Douglass, on the other hand, noted that there were other plausible readings of that phrase, such as indentured servants, for instance. What was more, Douglass argued that a proper reading of “held” at the time meant to be under contract. And slaves, Douglass pointed out, could not enter contracts. If the natural right principle was freedom and freedom to contract, then the reading that best supported the principle was one that referred to indentured servants, not to slaves. It mattered not that the “slave” reading had more historical consensus — the alternative reading was also historically plausible, and so it governed.
Douglass used this method to answer the most critical, contentious question of his time: Is the Constitution pro- or anti-slavery? Though the stakes are not the same, the question remains a part of our discourse today. He declared emphatically that it was anti-slavery. But he did not do so naively; he had a theory of constitutional interpretation that led him to that conclusion. His method closely followed originalism but in important ways deviated from mainstream originalist methodology. Indeed, perhaps Douglass presents another way to do originalism, a way that might be more faithful to the founders’ political philosophy of natural rights. To be clear, Douglass did not believe that one could simply import any meaning on the Constitution. He stated that if there were no plausible interpretation consistent with freedom, he would be the first to throw it out. But the preamble was clear, that justice be the aim of the Constitution. Douglass’ method reconciled the Constitution’s commitment to justice with the written words in the document.
BRADLEY
ALL RISE
WHY DEMOCRACY HINGES ON RESPECT FOR THE COURT, AND THE RULE OF LAW
OBY DAVID F. LEVI
UR NATION AND its history, to a degree that is both remarkable and unique in the world, is based upon two documents, neither long nor complex. The first is the Declaration of Independence, whose 250th anniversary we will celebrate next year. The second is the Constitution of the United States, the oldest written constitution in the world and one that has served as our charter of government from the 18th century to today with few changes.
Yet, despite their importance, and while many Americans are familiar with bits and pieces of both documents, most Americans are largely unfamiliar and uneducated about the documents as a whole, let alone
their history, nuances and changing import over time. Most of us are familiar with the beautiful first sentence of the second paragraph of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” But did you know that this sentence was commonplace for the time, a virtual repeat of a similar sentence in the Virginia Declaration of Rights drafted two months earlier by George Mason, not Thomas Jefferson — and part of the founders’ late 18th century belief system?
What made the declaration noteworthy and exciting at the time was its proclamation of independence. Hence its title. Over time, however, independence receded in importance as a fact of life no longer noteworthy, while the working out of the meaning that “all men are created equal with unalienable rights” became the central challenge for the new republic, through the Civil War and even down to the present.
While the Declaration of Independence is an important historical and cultural document, mastery of it is not essential to citizenship. But the Constitution is a very different kind of document because it is operational; it is our bylaws, our framework, our charter of government and civil liberties. How the courts and the other branches of government interpret the Constitution has great consequence for each one of us. And yet, sad to say, with the decline of civics education in our schools and elsewhere, most Americans have little understanding of the Constitution or our democratic form of government.
The polls on what Americans know about the basics of the Constitution are
OVER TIME, INDEPENDENCE RECEDED IN IMPORTANCE AS A FACT OF LIFE NO LONGER NOTEWORTHY, WHILE THE WORKING OUT OF THE MEANING THAT “ALL MEN ARE CREATED EQUAL WITH UNALIENABLE RIGHTS” BECAME THE CENTRAL CHALLENGE.
always shocking and disturbing. The yearly Annenberg Civics Knowledge Survey found that as of 2024, most Americans did not know that freedom of religion and of the press were a part of the First Amendment. Only 65 percent of Americans could name all three of the branches of government and 15 percent could not name any. This degree of ignorance only tells part of the story because, despite its plain and elegant language, there is much of the Constitution that can only be understood by careful study of its text, structure and history. For example, does freedom of the “press” refer to the printing press or to journalists in general? If it refers to journalists, does it cover new media such as bloggers? These are interesting and important questions, but most Americans will not have considered them.
ONE ASPECT OF our constitutional system bears particular attention because it is so critical yet so poorly understood. The Constitution seeks to preserve judicial independence by assuring judges that they cannot be removed from office absent misconduct and that their compensation cannot be reduced while they serve in office. What is the reason for these protections? It is so judges can decide cases without fear that they will be fired or impoverished if the powers that be do not agree with their decisions. These protections shield the judge, but the ultimate intended beneficiary is the society. We must have impartial judges who will decide cases fairly as between the rich and the poor, the powerful and the powerless, and the individual and the government.
This is how we preserve our civil rights and freedoms. But it is also how we foster and protect our social and economic arrangements and undertakings. Quite simply, judicial independence — by which we mean fair and impartial judges and courts — is essential to a successful, free and prosperous democracy. As the framers of the Constitution understood, and as social scientists have confirmed, it is impossible to have the rule of law without fair and impartial — independent — judges.
A number of important principles follow from the central importance of judicial independence. First, our judges are not “politicians in robes.” They are not beholden to the political branches, and we have every right to expect them to follow the law to the best of their ability. In my experience of having served for nearly 17 years as a United States district judge, this is exactly what our judges try to do. They are not partisan or political.
Second, we all must follow the rulings of our courts, whether or not we agree with any particular ruling. We rely on judges to do their jobs. When we do not agree, we may criticize or appeal. But we cannot defy the rulings of duly constituted courts and independent judges. That is the way to chaos and defeats the whole purpose of a free and fair judicial branch, itself a critical foundation of the rule of law.
Third, it is not at all appropriate to attempt to punish or intimidate judges because of their decisions by threatening them or family members, or by threatening to punish the courts for decisions by taking away needed resources, or, in the case of the United States Supreme Court, by threatening it with court
packing — expanding the number of justices and filling those seats with new justices who are pre-committed to overturning certain past decisions.
To study the Constitution and its long history, as well as its interpretation by the courts, is not just a duty and an academic exercise. I believe such study and understanding becomes an emotional commitment to our constitutional structure and freedoms, to our country, leading to a deeper appreciation of the hard-won liberty that we have and that must always be protected and never taken for granted. One of our great judges of the last century, with the wonderful name Learned Hand, put this so well in a famous talk he gave in 1944, during the World War, called the “Spirit of Liberty.” He told us that the Constitution and the courts cannot by themselves guarantee us our freedom: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”
To protect and defend that spirit of liberty, to instill it in ourselves and future generations, we must understand what we have and what past generations accomplished. Widespread misunderstanding and ignorance of our constitutional system degrades and ultimately imperils our democracy and our dedication to it. We must teach and discuss and seek to understand and thereby foster that essential spirit of liberty. Let us begin.
DAVID F. LEVI IS THE FORMER DEAN OF THE DUKE UNIVER
SITY SCHOOL OF LAW AND WAS THE CHIEF U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA.
DARK SIDE OF THE MOON
HOW ORDINARY AMERICANS WON THE SPACE RACE
BY ETHAN BAUER
Behind a plate of glass, overshadowed by the conical capsule that brought three American astronauts home from the moon in 1969, a wristwatch rests on a small stand. The command module Columbia, part of the Apollo 11 rocket assembly that Neil Armstrong and Edwin “Buzz” Aldrin rode to everlasting renown on the lunar surface, is still an intricate piece of space-age technology lined with buttons, lights, handles, hatches and an external coating of hexagon tiles, now faded a rusty orange. But the watch seems rather ordinary: white lines on a dark analog face, with a dark canvas Velcro strap.
It’s an Omega Speedmaster Chronograph, to be exact. A classic pilot’s watch, worn by the third member of that famous crew. Michael Collins never set foot on the moon; his job was to man the Columbia while the Eagle carried the others to the surface, miles below. But Collins’ path of orbit took him as far from Earth as any human had ever been. Each time the module
circled the far side of the moon, the radio went dark. He was cut off from his crewmates, from NASA’s control center in Houston, from all humankind.
While his crewmates took a familiar “giant leap” into history, Collins waited. They spent 21 hours, 36 minutes in the Sea of
“NOT SINCE ADAM HAS ANY HUMAN KNOWN SUCH SOLITUDE.”
Tranquility, as he waited, alone. I can almost picture him peering through the window and holding his breath each time the Columbia emerged from the moon’s shadow, relieved to find the sun still shining over
our little blue planet, but waiting for some distant, reassuring voice to come over the radio waves. What was it like when somebody finally broke that infinite silence? “I knew I was alone,” he observed later, “in a way that no earthling has ever been before.” That quote is immortalized on a placard near the watch, though Collins remains a supporting character in one of America’s greatest stories. On my first visit to the National Air and Space Museum in Washington, D.C., I’m fascinated by a range of more spectacular exhibits, from the Wright brothers’ first plane to Armstrong’s moonwalk suit. But I keep coming back to the watch worn by “the world’s loneliest man.” I think about his quiet role in what we accomplished as a nation, working shoulder to shoulder for the common good, and I wonder if we’ll ever do that again.
GENERATIONS OF AMERICAN kids have dreamed of becoming astronauts and exploring the cosmos. But few were bigger
1969: FROM LEFT TO RIGHT, ASTRONAUTS MICHAEL COLLINS, NEIL ARMSTRONG AND EDWIN ‘BUZZ’ ALDRIN JR., THE CREW OF THE LUNAR MODULE APOLLO 11, STAND IN FRONT OF A TEST MODULE BEFORE THEIR HISTORIC FLIGHT.
AMERICAN ASTRONAUT MICHAEL COLLINS (RIGHT) AND HIS WIFE PAT BICYCLE WITH THEIR CHILDREN, FROM LEFT, KATE, MICHAEL JR., AND ANN, HOUSTON, TEXAS, MARCH 1969.
AMERICAN ASTRONAUT (AND FUTURE POLITICIAN) NEIL ARMSTRONG PITCHES A BASEBALL TO HIS SON RICKY OUTSIDE THEIR HOME, HOUSTON, TEXAS.
RALPH
space nerds than my parents, both of them scientists. We lived in South Florida, so naturally, we traveled to the John F. Kennedy Space Center at Cape Canaveral almost every year. The nation’s premier rocket launch facility covers 6,000 acres on the “Space Coast,” about 40 miles east of Orlando, with plenty of room to store certain artifacts that just wouldn’t work on the National Mall. Like the entire space shuttle Atlantis, which flew 33 missions between 1985 and 2011.
I remember stumbling backward when I tried to look up at the roof of the Vehicle Assembly Building, eighth-largest in the world by volume. It's so big, some have claimed that clouds can form inside (this is sadly not true). I remember the Astronaut Hall of Fame. I remember The Crawlers, tracked transports that could carry the weight of 20 fully loaded Boeing 777 jets. And I remember the Saturn V rocket that hangs from the roof of the Apollo Center — the kind that powered the moon missions, the most powerful ever built. Seeing it all made space feel real to me.
A small theater there tells the story of Apollo 11, from political initiative to technological innovation and the human characters who played it out. It tells of Armstrong, gliding over the lunar surface, looking for a spot to land where he and Aldrin wouldn’t get stuck after he missed the original target. President Richard Nixon even had a speech prepared for that scenario. “These two men are laying down their lives in mankind’s most noble goal: the search for truth and understanding,” he would have said. “In their exploration, they stirred the people of the world to feel as one; in their sacrifice, they bind more tightly the brotherhood of man.”
Thankfully, the speech wasn’t needed, but the sentiment was real.
Humans have always felt an urge to explore, often at our own peril. Perhaps it began when we wondered what berries or game waited beyond that hill or across that river. Every mile we covered opened up a thousand more, over and over, for millennia. But what’s left for us to find? When every inch of land is mapped, photographed,
scanned with LiDAR and analyzed by artificial intelligence? No wonder Captain Kirk, in the “Star Trek” TV and film series, calls space “the final frontier.” Where I grew up, there was no hope of emulating Leif Erikson, Amelia Earhart or Meriwether Lewis. Space was all we had left.
And we ate it up. Look at most any streaming service, and you’ll find a galaxy of space programming, from the romantic “Star Wars” universe to gritty dramas like “Interstellar.” But most of the genre misses the point. For their characters, space travel has been figured out, becoming about as rare as commuting to the office and about that risky, too. As viewers, we’ve come to accept space as a background, part of the
United States had to respond, joining the space race. In July 1958, President Dwight D. Eisenhower created NASA to “carry out the peaceful and scientific parts of the space program,” per a display at the National Air and Space Museum.
650 MILLION PEOPLE WATCHED ARMSTRONG AND ALDRIN WALK ON THE MOON. COLLINS WAS NOWHERE TO BE SEEN.
scenery. But what made it so alluring to begin with was always the unknown, the danger and the selfless cooperation, sacrifice and mutual competition it took to get us off this planet to begin with.
THE COMMUNISTS STARTED it. On October 4, 1957, amid ratcheting tensions in the Cold War, the Soviet Union launched an unmanned satellite called Sputnik into orbit. A month later, they sent up a stray dog drafted off the streets of Moscow — known as Laika — who died in Sputnik 2. These weren’t PR stunts. Space travel called on advanced rocket technology that could also deliver nuclear missiles more effectively. The
But the U.S. was already far behind. The Soviets landed an unmanned spacecraft on the moon in 1959. In 1961, they made cosmonaut Yuri Gagarin the first human in orbit. NASA didn’t even have rockets designed for space travel. Even so, three weeks later, they strapped a capsule to the top of an intercontinental ballistic missile, built to deliver a nuclear warhead. In its place, Alan Shepard crammed himself into a compartment the size of a refrigerator inside the Freedom 7 — also on display — and blasted off to replicate Gagarin’s feat in May 1961. It wasn’t enough to stay neck-and-neck. That same month, President John F. Kennedy asked Congress for funding to land American astronauts on the moon by decade’s end. Speaking at Rice University in 1962, he doubled down. "We choose to go to the Moon in this decade and do the other things, not because they are easy, but because they are hard." Watching these speeches on video at the museum, I feel the same awe and inspiration I did as a kid. The message worked on Congress, too. NASA’s budget was increased fivefold by 1966. The cost of the Apollo program totaled about $25.8 billion — 10 times that in today's dollars.
Cash was just a start. Massive infrastructure centers were built in Houston and Cape Canaveral, where teams of scientists, mathematicians and intrepid pilots put in the work and took the risks. On January 27, 1967, three astronauts assigned to the Apollo 1 mission were killed during a simulated launch test, unable to escape after fire broke out in the command module. They were mourned on the cover of Time magazine, and the program’s naming convention skipped to Apollo 4 in their honor. Even so, by late 1968, manned flights were inching closer to the moon every two to three months.
As the Apollo 11 crew prepared to make history, Life magazine photographer Ralph Morse was making them famous — and human. In his work, Armstrong plays baseball with a son and reads the paper over dinner, getting home too late to eat with his family. Aldrin keeps it professional, posing in a jumpsuit by a model of the moon. Collins rides bikes with his three kids, paints at home and reads paperbacks at a beach with his wife. These images — some published then, some decades later — bring home what these ordinary men were willing to risk for love of country and to see what was around the bend.
WHEN ARMSTRONG AND Aldrin took their first steps on the moon, about 650 million people around the world watched on TV and heard Armstrong’s iconic narration of a truly unique accomplishment. Collins, as we know, was nowhere to be seen. But an American flag was planted on the surface, a Cold War victory that the Soviets never matched. Back on Earth, they took a 38-day celebration tour, visiting 24 countries. As one display at the museum notes, “people worldwide looked upon the first moon landing as a human achievement, not just an American one.”
If Morse made the astronauts celebrities, their journey made them heroes. “People enjoy being amazed, and space exploration never fails to deliver,” writes Andrew Chaikin via email. The author has largely dedicated his career to chronicling the Apollo era. It’s not just about discovery. Unmanned missions and space telescopes have delivered crystal-clear portraits of Pluto, snapshots of distant nebulas and video of the sunrise on Mars. But this was different, because they went there. “When astronauts are the ones seeing new things, it’s all the more compelling, especially when they come home and tell us about it.”
The space race was won, but politics never sit still. “Space was no longer the priority,” Chaikin says. A year later, “NASA was struggling to keep its human spaceflight program alive in the face of budget cuts
and political opposition.” It’s easy to forget that as many or more Americans opposed government funding for trips to the moon than supported it. Even the museum admits that “many citizens marveled at the achievement but questioned the billions of dollars it cost.”
Even so, the museum is less a record of the journey than a shrine to its memory. Flags are draped everywhere, and placards speak of a nation pulling together to achieve something extraordinary in a violent and unsettled age. “We’re drawn to experiences that aren’t universal, that represent the farthest edge of what humans can do,” Chaikin says. “We’re compelled by
Like looking at a piece of abstract art, I knew it meant something but couldn’t put it into words. Then, on my way out, I saw the original model of the starship Enterprise, from “Star Trek.” That series depicts a utopian future for humanity, beyond war and even currency. “We’ve eliminated hunger, want, the need for possessions,” says Captain Jean-Luc Picard, played by Patrick Stewart, in “Star Trek: The Next Generation.” “We’ve grown out of our infancy.” In creator Gene Roddenberry’s idealistic vision, humans are united in their quest for knowledge and the mysteries of the universe. In reality, the Apollo program may be the closest we’ve ever come to that.
EACH TIME HE CIRCLED THE FAR SIDE OF THE MOON, HE WAS CUT OFF FROM HIS CREWMATES, FROM HOUSTON, FROM ALL HUMANKIND.
The Enterprise model is a prop, like the life-sized X-wing fighter from the original “Star Wars” trilogy that hangs from the rafters nearby. Both look cheap and uninteresting compared to the real deal, though we spend far more time as a society visiting their fictional worlds. Meanwhile, profit, rather than idealism, motivates the private companies that launch most space missions in the news today. Down the hall, the "Futures in Space" exhibit remains under construction. But that wristwatch is real and tangible. It accompanied a man who truly went where no man had gone before.
‘firsts,’ by extremes, by frontiers. The moon missions fit all three.”
We also remember the little things. Like the miniature harmonica and six small, silver bells that the two-man Gemini VI-A crew smuggled aboard just before Christmas 1965, which they used to play a surprise rendition of “Jingle Bells” for their counterparts back in Houston. There’s also Collins’ checklist for an earlier mission on Gemini X, citing the necessity to “prepare waste jettison bag” — another reminder that this was a human endeavor after all. And that brings me back to his watch.
At first, I was fascinated, but perplexed.
“Not since Adam has any human known such solitude,” observed one mission control official. And out there, the watch tethered him to his home and our place in the cosmos. In outer space, where days are not days as we know them, and time itself can be warped by mass and energy, the watch kept ticking. Second by second. Collins was less philosophical about it. Reconnecting with mission control, he said, was unremarkable. He spent his time alone listening to music and looking out into the void of space. He was comfortable. The idea that he felt existential loneliness or yearning for the voice of mankind was, simply, “baloney.” The watch doesn’t disagree. Collins was a man, and nothing more, it tells me, who just happened to redefine the limits of our existence.
SAFE AND SANE
AN ODE TO A DUD
BY CHAD NIELSEN
Ididn’t see it coming. Traveling alone, many summers ago, I stumbled onto a festival in an ancient Spanish city. Revelers milled over cobblestones, under ironwork streetlamps. Calloused fingers strummed guitar strings while men in white shirts and tailored vests danced with women in florid dresses that flared as they twirled, this way and that. My clothes didn’t match the occasion, but I met only smiles and warm glances, so I followed as the crowd spilled across an esplanade toward the stonework walls overlooking a broad river. I felt strangely at home.
Across the water, a small flame lit up in the dark. People around me held their breath as distant fuses hissed and tiny, invisible rockets took flight. I followed their eyes, expecting a civilized drizzle of sparks above the water. Instead, something exploded directly over our heads, a thunderclap and a burst of light, close enough to fill the sky and dampen my hearing. An errant launch? No. The people around me tittered and gasped as more followed, a convulsion of color and brain-rattling percussion that felt close enough to touch. I gaped like a child, neck craned, until something smacked me in the face.
A black streak. An impact, against my right cheekbone. I only felt the echo, then a sting. My hands shot up in a defensive reflex that came too slow, but my fingers found no blood. Looking around, I spotted the culprit still rolling on the ground and held it up to the
shifting light. A sphere, charcoal black, half an inch across, missing a small chunk that must have been chipped off by my face. An undetonated pyrotechnic. A dud. I imagined what it might have done to my eyeball had it landed an inch north, and shuddered. Fireworks have never been safe. They cost us limbs and fingers, eyes and ears, buildings and forests. Like mortars without shells, they paint ephemeral images of war onto the world around us. They were designed for that, centuries ago, to strike awe and celebrate the might of the powers that be. Back home, they sing of the rockets’ red glare — but only resonate as far as their thunder is permitted to roll. Safety first! That’s reasonable. Fireworks are about as exhilarating as they are dangerous, but I never expected to be the target.
With the dud in my hand, I felt untouchable. This was the one with my name on it. And it missed. So I buttoned it into my shirt pocket like a talisman and got back to the show. Later, whenever I needed to call up that feeling, I’d pull out the dud and roll its chalky surface between my fingertips. But life changed, as it does, settling into a dull but comfortable routine, and the dud disappeared. Or so I thought. Not long ago, I was organizing a box of memories when I heard a curious rattle from an old black film canister. Popping it open, I breathed a little easier.
BECKET CANTERBURY MEDAL GALA
The 2025 Canterbury Medal Gala honoring Cardinal Timothy Dolan for his lifelong defense of religious liberty took place at the Plaza Hotel in New York in May. Hosted by the Becket Fund for Religious Liberty, the annual event draws religious leaders, public figures and press from around the world. Past honorees include Elie Wiesel, Mitt Romney and President Dallin H. Oaks — placing Cardinal Dolan among distinguished company in the fight for freedom of conscience.
G. MARCUS COLE, DEAN OF THE NOTRE DAME LAW SCHOOL, AND HIS WIFE ANGIE GREET CARDINAL DOLAN DURING THE GALA.
ELDER QUENTIN L. COOK, OF THE CHURCH OF JESUS CHRIST OF LATTERDAY SAINTS, AND HIS WIFE MARY ATTENDED THE EVENT. ELDER COOK AND ROBERT P. GEORGE OF PRINCETON (FAR RIGHT) BOTH OFFERED BRIEF REMARKS.
BECKET PRESIDENT AND CEO MARK RIENZA PRESENTS THE CANTERBURY MEDAL TO CARDINAL TIMOTHY DOLAN, THE ARCHBISHOP OF NEW YORK.
THE GALA WAS HELD AT THE PLAZA HOTEL IN NEW YORK. PAST MEDAL WINNERS INCLUDE ORRIN HATCH AND RABBI MEIR
SOLOVEICHIK.
FOR THE HERDS OF GRANDMAS AND DOGS DYING
BY NATALIE PADILLA YOUNG
It feels good, doesn’t it? Just throwing something away, not worrying about how to recycle or finding the perfect spot.
And isn’t a room much louder once emptied? Bare shelves — no towels, no blankets, no books to absorb the echoes.
Then, with all the rooms boxed up, it’s time to move on
to the next house ready to be quieted.
*
Look. There’s a dead bird.
Oh — it’s an owl.
Is it? It’s all scrunched up.
To him (who made me look) it’s just a bundle of feathers.
To me it’s a head with a beak.
He sees no owl. I see no body.
* Becoming an erosion — a canyon or an amphitheater —
the difference is in the method:
A canyon formed from a steady source of flowing water, a river.
An amphitheater carved with rain and wind, earth’s movement.
Experts on grief say one must grieve each sorrow individually. Or else the griefs mesh
grinding away larger and larger spaces of sadness.
*
Aren’t we always looking for a holiday miracle? A gluten-free pound cake, a comforter, a summoning spell — the cure for all this subtraction — a wish granted. Blow out the candle and wham-o:
Negotiation complete. The grandmas are back, the owl and my dog.
Raise our eyes to the sky, so solid blue it may as well be white. Give thanks to whatever we can,
because we can. Race down the sidewalk. We’ll never stop running, the herd of us, again.
NATALIE PADILLA YOUNG IS THE AUTHOR OF “ALL OF THIS WAS ONCE UNDER WATER” FROM QUARTER PRESS (2023), AND THE EDITOR-IN-CHIEF OF SUGAR HOUSE REVIEW IN SALT LAKE CITY.
SPRING GOLDEN HOUR, DOLORES PEAK, COLORADO | PHOTOGRAPHY BY AUSTIN PEDERSEN
On the way to Arlington National Cemetery, nursing students from Brigham Young University assist military veterans participating in the Honor Flight Program. As they care for those who sacrificed for freedom, they see firsthand how people need more than medicine to fully heal.
Learning by study, by faith, and by experience, we strive to be among the exceptional universities in the world and an essential university for the world.
Huntsman Graduate. Rodeo Queen. Sales and Trading Analyst. Competition Winner. Woman in Business. Risk Taker.
