Welcome to America’s Fourth Great Constitutional Rupture

Americans are prone to venerate our Constitution, mythologizing the founding generation as uniquely wise, and our subsequent constitutional history as a process of evolution toward an ever more perfect union.

But American constitutional history is far more fraught, its evolution a kind of punctuated equilibrium marked by mass extinction of prior forms and precedents. Each of these moments has reshaped the way our Constitution works in fundamental ways, providing a new framework for normal politics for a new era.

The scope of President Trump’s challenge to the existing constitutional order — largely through a blitzkrieg of executive orders, many of them in blatant disregard of established precedent and legislation — suggests we may be in the process of another such discontinuous and disruptive moment.

The question is whether it will transform our constitutional order fruitfully yet again, or accelerate a final degeneration into Caesarism.

The answer cannot be determined simply by looking at the scope of Mr. Trump’s actions or the ways in which they violate the law as currently understood. As the legal scholar Bruce Ackerman delineated in his classic trilogy on popular constitutionalism, “We the People,” previous moments of radical transformation often violated the rules that governed normal politics.

The first such moment was the founding itself. Delegates to the Constitutional Convention were sent to revise the Articles of Confederation; instead, they proposed an entirely new form of government chartered by “we the people of the United States,” sitting both above and alongside states that had previously been the only sovereign entities.