The Constitution Today

Does the Foundation Still Hold?

The Constitution was written for a world of muskets and quill pens. It was designed for a republic of four million people spread along the eastern seaboard. It assumed that the states would be the primary locus of governance and that the federal government would be a distant, limited thing.

None of those assumptions survive today. The United States is a continental nation of over 330 million people. The federal government reaches into every corner of American life — through taxation, regulation, entitlements, and national security. The states still matter, but they are not the center of gravity they once were.

Yet the Constitution remains. It has not been replaced. It has been stretched, reinterpreted, and argued over, but the framework itself endures. The question that confronts Americans today is not whether the Constitution will survive. It is whether the system it created can still deliver on its promise of effective but limited government — and whether the people who live under it still share enough common ground to make it work.

“Is it possible that the development of American democracy has exhausted the adaptive capacities of the Constitution?” Stephen Skowronek, The Adaptability Paradox, 2025

Originalism vs. Living Constitutionalism

Every constitutional question — from abortion to gun rights to presidential immunity — ultimately turns on how the document is read. For most of American history, the debate has been defined by two competing philosophies.

The debate is not academic. It shapes the outcomes of cases that affect millions of lives. When the Supreme Court struck down Roe v. Wade in 2022, it did so on originalist grounds — arguing that the Constitution contains no right to abortion. When it upheld the Affordable Care Act in 2012, it relied on a reading of the taxing power that living constitutionalists defended and originalists criticized.

The stakes are high because the two theories often produce different results. But the deeper problem is not which theory is correct. It is that the two sides no longer agree on what the Constitution means, or on who gets to decide. As one political scientist put it, “Conservatives aim to dismantle a Constitution that progressives are intent on building upon, and the consensus necessary for a constitutional democracy to function effectively has all but evaporated.”[reference:0]

A Term That Tested the Structure

The Supreme Court’s October 2024 term, which concluded in June 2025, produced a series of decisions that reshaped constitutional law in areas ranging from birthright citizenship to free speech to the power of federal courts.

• Trump v. CASA The Court held that lower federal courts exceeded their authority by issuing universal injunctions that blocked executive actions nationwide. The decision did not address the constitutionality of the underlying executive order on birthright citizenship, leaving that question unresolved. 14th Amendment · Federal Judicial Power
• United States v. Skrmetti The Court ruled that Tennessee’s law prohibiting certain medical treatments for transgender minors did not violate the Equal Protection Clause, rejecting arguments that the law discriminated on the basis of sex or transgender status. 14th Amendment · Equal Protection
• Free Speech Coalition v. Paxton The Court upheld a Texas law requiring commercial websites to verify that users are at least 18 years old, holding that the law only incidentally burdened protected speech and therefore survived intermediate scrutiny. First Amendment · Free Speech
• Mahmoud v. Taylor The Court held that parents challenging a school district’s introduction of certain storybooks without an opt-out were entitled to a preliminary injunction, recognizing a Free Exercise claim. First Amendment · Free Exercise
• TikTok v. Garland The Court upheld a federal law requiring the divestiture of TikTok from its Chinese parent company, rejecting a First Amendment challenge. First Amendment · National Security

These cases are not just legal rulings. They are the Constitution being forged in real time. Each one answers a question the text does not explicitly resolve. Each one shifts the balance of power between the branches, between the federal government and the states, or between the government and the individual.

Separation of Powers in the 21st Century

The Constitution’s design assumes that each branch will check the others. That assumption is being tested.

Legal scholars across the political spectrum have described the current moment as a “stress test” for the separation of powers. One recent analysis warned that the structure is “destabilized by an overly aggressive Executive, a subservient Congress, and a fractionalized Judiciary.”[reference:1] The result, the author argued, is a “storm of the century disfiguring the U.S.” constitutional system.

The reasons are structural, not personal. The modern presidency has accumulated power over decades — through executive orders, agency rulemaking, and the expanding reach of national security. Congress has often been unable or unwilling to assert itself, particularly when the same party controls both branches. And the courts have become the primary battleground for issues that once would have been resolved politically.

This is not the first time the balance has shifted. The New Deal era saw a dramatic expansion of federal power. The Civil Rights era saw the courts take a leading role in reshaping American society. Reconstruction saw Congress attempt to remake the South. Each of these periods was described at the time as a constitutional crisis. The system adapted. The question is whether it can adapt again.

“The core problem is not a constitutional problem but a political problem — rooted in polarization, unified government, and the abandonment of institutional good faith.” Professor Barry Sullivan, 2025

A Convention of States?

As debates over the Constitution’s meaning intensify, a parallel movement has been building to change the document itself. A national organization called Convention of States Action has been pushing state legislatures to apply for an Article V convention — the second method of proposing amendments, which has never been used.

The states that have passed the resolution include Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin. Five more states have passed it in one chamber: Iowa, New Mexico, North Carolina, Virginia, and Wyoming.[reference:2]

Supporters argue that Article V is the Constitution’s built-in mechanism for correction — that the Framers knew the document would need updating and provided a way to do it without resorting to revolution. Opponents warn of a “runaway convention” that could propose amendments far beyond its stated scope, potentially rewriting the entire constitutional structure.

The debate itself is a sign of constitutional health. The fact that Americans are arguing about how to amend the document — rather than whether to abandon it — suggests that the foundation still holds, even if the forge is running hot.

A Crisis of Faith?

Not everyone believes the Constitution is worth defending. In recent years, a growing chorus of legal scholars and public intellectuals has argued that the document is not just outdated but dangerous.

Brown University’s Corey Brettschneider has called the Constitution a “dangerous document” driving a “threat to democracy.” George Washington University law professor Mary Anne Franks has condemned the “cult of the Constitution,” which she says has been used to advance “white male supremacy.” Harvard’s Ryan Doerfler and Yale’s Samuel Moyn have argued that Americans need to “reclaim America from Constitutionalism.”[reference:3]

Berkeley Law Dean Erwin Chemerinsky, in his book No Democracy Lasts Forever, argues that the Constitution has become a threat to American democracy — citing its treatment of race, the Electoral College, and the malapportionment of the Senate.[reference:4]

These critics are not fringe figures. They are deans and professors at some of the most prestigious law schools in the country. Their arguments deserve to be taken seriously, even by those who disagree.

But there is another view. Many Americans — perhaps most — still see the Constitution as a gift. As one commentator put it, “Unlike other nations bound by a common language or culture, we are a nation united by a legacy of ideas — a revolutionary faith in a free people bound together by a simple Constitution.”[reference:5]

The Constitution is not perfect. It was written by flawed men who compromised on slavery, excluded women and Native Americans from the political community, and designed a Senate that gives disproportionate power to small states. Those flaws are real. They are part of the foundation.

But the Constitution also contains the tools to address those flaws — the amendment process, the Bill of Rights, the Reconstruction Amendments, and the ongoing capacity for reinterpretation. The question is whether Americans still have the will to use those tools.

The Forge Is Still Hot

The Constitution was never meant to be a finished product. It was meant to be a framework — a foundation on which each generation would build, and a forge in which each generation would shape the metal of self-government.

Today, that forge is hot. The debates are intense. The stakes feel existential. The consensus that once held the system together has frayed. But the system itself — the separation of powers, the checks and balances, the federal structure, the amendment process — remains intact.

The Constitution does not guarantee good outcomes. It guarantees a process. It guarantees that power will be contested, that arguments will be made, that no branch will be able to act alone. That process is messy. It is slow. It is frustrating. It was designed to be.

The question for Americans today is not whether the Constitution is perfect. It never was. The question is whether they are willing to do the work of making it work — to pick up the hammer, stand at the anvil, and forge a future that lives up to the promise of the foundation.

“The Constitution has survived 238 years because we, the people, have fought for it when it was threatened.” American Civil Liberties Union, 2025