Daniel Farbman: The Case for a Nation in Constitutional Crisis

Editor's note: Mr. Farbman's views are presented in his own words, without editorial commentary or independent fact-checking, in a condensed version, edited for length and clarity. The full interview is available in the online version at www.cadetnewspaper.com Mr. Dan Farbman teaches and writes in the areas of local government law, legal history, constitutional law, the legal profession, civil rights, and property. He was a clerk for Judge Margaret Morrow in the Central District of California in Los Angeles before beginning a Skadden Fellowship at Advancement Project in Washington, D.C. In the upcoming debate, Mr. Farbman will argue for the debate resolution "Be it resolved, the U.S. is experiencing a constitutional crisis." In advance of the discussion, Mr. Farbman recently sat down with The Cadet on this important topic and its impacts on VMI. The Cadet: You have argued that since Election Day 2016, the "stability" conception of the rule of law has been eroding, and now, with the pandemic and protests, it has "accelerated." (https://lawmagazine.bc.edu/2020/07/a-better-way/) Could you define precisely what you mean by "constitutional crisis"? What criteria must be present? And when, in your view, did the U.S. first cross that threshold—was 2016 the moment, or only later? Dan Farbman: Yeah, I think it's a great question. I think it's the right threshold question to ask, "What do we mean by a constitutional crisis?" I should say from the outset that I'm happy to say what my definition of that might be, but I also think that if people define it differently, it doesn't matter very much whether we call it a constitutional crisis or not. I think we are in a moment of political instability. And that seems right to me, and I think maybe not even particularly arguable, no matter what your politics are, whether we call that moment of political instability. A constitutional crisis is something we could talk about, but maybe it is not actually the most interesting question. When I talk about political instability, there are a couple of things we might talk about. We can frame this in terms of the Constitution and what the Constitution is supposed to do. So one thing the Constitution is supposed to do is provide a system by which we govern ourselves, right? And so there are supposed to be three branches of government, and they're supposed to be a legislative branch, an executive branch, and a judicial branch. One way of defining what a constitutional crisis might be is when that system of governance is no longer functioning the way it is supposed to function. And so, to ask the question of when we first cross the threshold into this kind of instability, you can go back before 2016. You can think about the relationship between President Obama and Congress and the fact that it became increasingly impossible, basically starting in the year 2000, for Congress to legislate. And suppose Congress is passing fewer and fewer laws, and as a result, Congress is unable to do things in the world. In that case, that is a kind of crisis because it means that the legislative power or the legislative role is increasingly becoming weaker. I think we see this in all kinds of ways, that there's been government shutdown after government shutdown, after government shutdown. It's impossible for Congress to act in all kinds of ways. That's one way of defining what might be eroding political stability. Another way of thinking about it is whether people feel safe disagreeing with each other in the political sphere. The Constitution is supposed to create a political sphere through which we talk to each other, argue with each other, and disagree with each other. I think if you ask people on either side of the political divide right now, whether they feel as if we have in place a civil discourse of disagreement within our constitutional structure, I think people on both sides would say no. And so that's a kind of crisis, right? A crisis of politics where the Constitution, which is supposed to give us a context for conducting our politics without fighting with each other, is no longer providing that service. Maybe another way of thinking about it would be that one thing the Constitution is supposed to do is protect our rights, to protect us from certain kinds of governmental interference, whether those are free speech rights, whether those are rights not to be arrested without a warrant. I think that, again, people on both sides of the political divide have felt, with reason, or maybe without, that those rights were under threat in a way that wasn't the norm; we litigate them and we can vindicate them through the courts, but some of the constitutional protections that we relied on have eroded. So all of that is what I mean by political instability. There's a fundamental baseline of rights protection. There's a fundamental political sphere where we can go to work out our problems, where the government basically functions. All those things have actually become less and less stable beginning at the beginning of the century, and I think accelerating in 2016 and now accelerating again in 2020. The Cadet: Going back to your comment on the constitutional crisis, or the seeds of it starting under President Obama, did it ease under President Biden, then return under President Trump? If so, what specific actions or institutional behaviors under each administration mark those phases? Dan Farbman: I don't mean to resist the question. I think there's a little underlying these questions, a kind of assumption, that there is a left position that we are in a constitutional crisis, and a right position that we are not. I suppose there's something to that. I'm not particularly interested in that division. I would say that it eased under President Biden only in the following sense, not in the sense that Congress became more functional, but in the sense that President Biden was an avowed institutionalist. There [were] a lot of ways in which the Biden administration ran on a conception that we would try to return our prior institutional stability. This is what Vice President Harris ran on, a promise to return to a certain kind of institutional stability. I don't think that Biden could keep that promise because I think we are fundamentally in a world of political instability. But to the extent that you have a member of the government seeking to preserve institutions as opposed to an executive who is openly critical of and interested in dismantling and rebuilding or maybe just dismantling institutions, I do think that those are different things. One is more stable than the other. If you're seeking to return the FBI or the IRS to its prior stability, that is more in line with what the Constitution imagined, which is a kind of long-term institutional stability, than somebody who says, 'Well, you know, every institution is subject to fundamental questions, which is the basic the basic argument of the DOGE project -- every institution should be questioned. I think that sometimes people code this idea; it is bad to be in a constitutional crisis. It is good not to be in a constitutional crisis. I guess I resist that coding. I think it's neither bad nor good. It's a descriptive question. Are we in a moment of political stability governed by the Constitution, or are we in a moment of political instability where the guidelines and protection of the Constitution are providing us less utility? I think we can have that descriptive conversation without necessarily fighting about whether it's a left or right-privileged conversation. The Cadet: The context of putting the questions together was the central question by Steamboat, which is "the U.S. is experiencing a constitutional crisis." You are arguing the affirmative, so the questions are framed for each of the debaters that way. Dan Farbman: Makes perfect sense. I do believe, for the record, that we are experiencing a constitutional crisis. To the extent that there is a politics, electoral or left-right politics to that question, we can complicate that a little bit, because I do think that we're experiencing a constitutional crisis. Many of the things in that crisis are bad by my own political estimation. It doesn't mean that the fact that we're experiencing a crisis is necessarily bad. This is one of the things I'll talk about in the debate: why it matters that we're in a constitutional crisis, and if to the extent that we're debating something or disagreeing over something, what we're actually disagreeing over and what the stakes of that are. The Cadet: Given Yale's OpenYLS and other scholarship showing that America's system of checks and balances creates natural, expected conflict between branches, when does "clash" become "constitutional crisis"? Could you point to specific institutional breakdowns (e.g., legislature ignoring judicial rulings, President ignoring statutory constraints) as evidence that we have moved into a crisis? Dan Farbman: I think that is an insightful question. It's always the case that the branches will clash with each other. The story of American political history is the branches clashing with each other. One conventional definition of a constitutional crisis is the sort of classic example of the judiciary making a decision and the President refusing to enforce it. So this famously looks back to Andrew Jackson and the Cherokee cases. Although he never really said this, the apocryphal thing is that "the Supreme Court has made its decision now, let them enforce it." The basic observation is that the Supreme Court doesn't have an army or any authority to enforce this decision. It relies only on the other branches' good graces. So to the extent that we had such a clash, I think you could call that a certain kind of constitutional crisis. Again, my definition of a constitutional crisis is something more like a crisis in our political system as defined by the Constitution. I wouldn't quite define a constitutional crisis as only an incommensurable clash between the legislative, executive, and judicial branches. I will say, however, that I actually think that a clash is not the right way of thinking about what a crisis might be. It might be a crisis, for instance, if the Supreme Court felt so threatened or so worried about creating a clash that they adjusted what would otherwise be their normal behavior in order to avoid a clash. So what would happen then is that you actually lose the system of checks and balances, which is supposed to be inherent in the Constitution. For instance, as I think is the case in some instances, federal legislators feel threatened, feel unable to come to the conclusions they would otherwise come to because of threats of physical violence. That would actually mean that they would be avoiding clashes with the executives, but that would be a kind of crisis because they were unable to perform their role in providing checks and balances. Similarly, if the Supreme Court felt as if it could not reach a conclusion, it could not say to, for instance, the Biden administration, the Trump administration, whichever administration, "You have to stop doing this," because the Trump administration or the Biden administration wouldn't stop doing it. That is not a clash. It's a kind of crisis because the system of checks and balances collapses when the independent branches are unable to actually act independently. Now it's hard to know because some of this goes to sort of mental mind states, and we can't know this. One way of understanding some of the things that are happening at the Supreme Court right now is that the Supreme Court does not want to get into a fight. The kind of clash or fight with the Trump administration over whether ICE can racially profile people in California. So they chose to avoid that fight for now on the shadow docket. Maybe they did it because of a substantive constitutional argument, in which case you wouldn't call it a crisis. But if they did it, in part, because they were trying to avoid a clash, then they're actually losing some of their own independent authority to do checks and balances. Maybe that's the kind of thing that leads to the sort of instability, non-functioning of our constitutional order, which I would call a crisis. The Cadet: Some have argued that suppression of student journalists and especially the assassination of Charlie Kirk are symptoms of a constitutional crisis because they show a breakdown in legal protections of speech. What threshold of suppression or violence, or pattern, do you believe qualifies as part of a constitutional crisis (if it does)? Has that threshold been met with the Charlie Kirk Assassination? Please provide concrete examples. Dan Farbman: This is a really interesting question. I think we have to think about two different things going on in this question. One is the threat of political, lawless, and not legally protected political violence. I think that is unfortunately something that is in our culture right now. People speaking about political issues feel real threats of political violence. That political violence is the suppression that comes from fear, like fear of physical violence or fear of other kinds of illegal, non-legal responses. That does have a suppressing effect on speech. If it's not done by the state, it's not a violation of the First Amendment as a matter of law. So the First Amendment only deals with state and federal suppressions of speech, but through the 14th Amendment, it deals with state suppressions of speech as well. I won't deny that this sort of ambient threat of physical violence is really chilling people's ability to speak. There's another thing happening in some places, and I know both sides have that happening in certain kinds of ways, which is actual state actors stepping in to suppress certain kinds of speech. We could think of this as banning books, or we could think of this as firing people for making public statements. Those actually are violations or at least could be construed as violations of the First Amendment because they are state acts limiting speech. Every case is going to be different. I do think it's important to disaggregate those two things because there's one thing which is protected speech under the First Amendment, and that is speech protected against the state stepping in and suppressing it. There's another thing, which is a toxic political environment where people feel afraid to speak their views and feel physically threatened for speaking their views. Both are bad, but they're bad in different ways, at least in different constitutional ways. I am not sure that the first, political violence, as a sort of background threat on speech, necessarily leads to a constitutional crisis if every time those illegal acts suppress speech, they're punished under our normal constitutional order, that's sort of how it's supposed to work. There have been political assassinations for as long as we've had this country. One might argue that as long as those political assassinations are punished using our legal system, we're not in a constitutional crisis. I think it's more worrying when we have state actors essentially suppressing speech as a matter of constitutional crisis. The Cadet: The Virginia Senate Democratic Majority Leader said, "On Martin Luther King Day, [when President Trump was inaugurated] something happened up in Washington, D.C. that changed the tone … norms are out the window, laws are out the window, and the Constitution is out the window." To what extent do state governments, including in Virginia, reflect spillovers of a federal constitutional crisis? Do you see VMI's state, or Virginia's institutions, already being affected? Give specific state-level examples. Dan Farbman: When you enter a period of political instability, traditional norms do less work to structure political behavior, to structure our understanding of what's happening. I'm not particularly interested in standing up for any political party in this instance. What is true, though, is that almost immediately after President Trump's inauguration, he explicitly said, "We're challenging a bunch of previously held norms." DOGE is a great example of this. He created a department that lacked a legal basis to review every other agency. Whether you like what they did or not, it is certainly not something that had happened before, certainly outside of the norms of what was happening before. Similarly, I think you can look at a lot of what is going on with public health and the ways in which the federal government is dealing with grants that Congress authorized it to make. There are many ways in which the federal government is acting in a different way than it had before. In some ways, its acting makes it unreliable [and] unstable because we don't know what's happening, so states don't know how to respond, which is going to mean that states, all states, have to figure out what to do in a new climate of instability. Especially in the context of a state where there is a Democratic [administration] or where a governing majority is opposed to what the administration is doing, you would expect them to push back in whatever ways they can. That's just how normal politics works. Does that mean it is a constitutional crisis? No, because that is how things have always worked. It becomes more of a crisis when the basic functioning of governance and the basic protections of rights become less stable, and states have to step in and try to do things to protect those rights. It is a sign of the kind of political instability and crisis that I think is what I am calling a constitutional crisis. But that doesn't mean that every time a state pushes back against the federal government, that's a constitutional crisis. I guess the other part of this question is, are Virginia's institutions being affected? Yes, every state institution is affected by political instability because VMI gets its money from the state government. The state government operates through politics, not through some other way of operating. So that means that when you have the kind of instability that's filtering through the entire system, it's going to affect all state institutions. Is it stable norms for me but not for thee? If it's okay to take away all the money from the University of Virginia and for all of its science grants, is it not okay for a Democratic majority leader in Virginia to act in response? Maybe so. We might say that we want to preserve norms across the way, but I think understanding when norms are threatened leaves us with just fewer norms. Everybody has to operate in a world not where some norms exist and other norms do not, but actually, the norms cease to do as much work for us as they used to. The Cadet: How do recent conflicts around Diversity, Equity, and Inclusion [DEI] policies, campus speech, censorship (or censorship claims) among student journalists, or academic speech fit into your framework of constitutional crisis? Do you believe that suppression of speech in universities contributes to or is itself a sign of a constitutional crisis? If yes, when did that begin, and how serious is it? Dan Farbman: I think that the inability to have vigorous disagreement on campuses is a sign of our political crisis, and I think it is a symptom of a broader thing that we might call a constitutional crisis. I think everybody should be allowed to speak energetically and vociferously about the views they have. One of the reasons why I'm doing this debate is that we need to treat each other like good-faith human beings and find ways to talk to each other as good-faith human beings. There are so many complications when we talk about what counts as censorship and what doesn't count as censorship that I think it's a little bit of a tricky thing to talk about, but when did the censorship go too far? To me, the general intuition should be towards allowing people to speak to each other and disagree, but it's also true that people reasonably can feel threatened when some people speak in certain ways. It's a very tricky thing for any community to figure out what the barriers between vigorous, humane disagreement are and what legitimate threats are. I think that institutions have oftentimes veered towards suppression as a way of dealing with what they perceive to be threats. That goes in both directions. I would say people on both sides of the political spectrum now feel as if their speech is being suppressed on college campuses. That is a sign of an unhealthy political system where we don't feel as if we know how to disagree with each other without threatening each other. It's a sign of the broader political crisis, and to the extent that the Constitution was supposed to protect us from that by protecting free speech, it's a sign of a constitutional crisis. Part of the problem with talking about it in this way is that there's a lot of nuance here, which is that if VMI protects some speech and doesn't protect some other speech, those are First Amendment issues because VMI is a state school.If Washington and Lee make the same decisions, it's not a First Amendment issue because it's a private school. We seem to have lost the ability to disagree vigorously while retaining an insistent faith in each other's humanity and good faith. [This] is a sign of political crisis and something that I think our Constitution was supposed to protect us against, and is not doing right now. The Cadet: Looking back at previous times America has been said to be in a constitutional crisis (e.g., Reconstruction, Watergate, Civil Rights era), what lessons about the revival of constitutional order do you draw? What remedies (legal, institutional, normative) would you propose now to avoid collapse? Why should a cadet at VMI care about this? What are the stakes for military discipline, constitutional loyalty, chain of command, and civic order in Virginia and nationally? Dan Farbman: It is a great question. I think the people who are most concerned about what's happening, maybe call it the political left or call it critics of the administration, there are two positions. One is that we need to return to a previous constitutional order, some stability. Another is that we need to work together to build something new. I think that the second position is more in line with what a lot of people who are supporters of the administration feel, which is that we are in the process of building something new. Of stripping away institutions that have not been useful to that or have been hostile to our interests, and building something new. I think of myself in that second camp. We are in a crisis, but we have no means to go back. We can only go forward. All of the examples of Reconstruction, Watergate, and the Civil Rights era are examples of what happened afterwards, not a return to the prior order. After Reconstruction, Emancipation happened, the 14th Amendment [was passed]. It was a total transformation of our constitutional order. Even though it was not a rejection of the Constitution altogether, it was an amendment, but it was a fundamental change. The Civil Rights era. If you think about how the Civil Rights Act and the Voting Rights Act changed the space and structure of American politics and how American culture worked, it was a fundamental move forward, a re-imagining of our constitutional order. It was not a return to something in the past, before the crisis. You could say much the same about Watergate. We need to work together, all of us, on every side to figure out some kind of new thing that we are building together. I am a person who believes in participatory democracy, that whatever we build, we have to build together. One of the biggest fights right now is that some people are claiming the authority to build something without it being a thing we're building together, to build something new, and then to impose it on others. This is why it is relevant to cadets at VMI. The military has historically not been the body that decides how the state will use its force, but rather the body that acts when the state decides to use its force. The legitimacy of those orders, the legitimacy of that chain of command, relies on a fundamental belief that those giving the orders have democratic legitimacy, they speak for everyone, even the people who didn't vote for them, and that they truly represent everyone. To the extent that the U.S. military is under any threat of moving away from that position, of the military somehow only representing some of us and being hostile to others… that raises real problems, real legitimacy problems. We all need to work together to build the next thing. The military is a fundamental part of our society, like the fabric of our legal order. But the military has historically not been the group of people who decides what the next thing will be. They act under the orders of those who are politically making those decisions. It's a real problem if we are moving away from a commitment to a kind of democratic project deciding what our constitutional order should be, to something that is somehow not inclusive of every voice and every person, and not trying to include all the people who will be ultimately governed by it. That has real consequences for constitutional loyalty, for the chain of command, for civic order, because you're most likely to see the kind of civic unrest that all are terrified of when you have a political order that doesn't seek to represent everyone. The Cadet: Part of your argument seems to be that once norms erode (not just laws), a constitutional crisis is imminent. How do you measure norm erosion: public trust in institutions, respect for precedent, non-partisan enforcement, etc.? Are there empirical measures (surveys, behavior) you rely on? When did you see a tipping point? Dan Farbman: It's a great question, and I am a historian, so to me, the question of norms is a question of behavior over time and the boundaries and limitations that have historically been placed on behavior over time. When I think about norm erosion, I think about the kinds of things that in past years, in past administrations, would have been off the table that are now on the table. For instance, politically punishing blue cities because they didn't vote for the red President. That hasn't been historically done, and it's not that it's a norm; it is something that wasn't done, but is now back on the table. Think about the way in which executive orders are being used, the way in which congressionally appropriated money is being held back, and the way in which it is a long-standing norm of American political life that the federal troops do not go into American cities. So there are a bunch of ways in which norms are changing. Whether they're eroding, I don't know. Maybe new norms are being built. The Cadet: This last one is focused on VMI itself, and you may not have the background on this, but over the past four or five years, with a lot of what you talked about with the instability, the school has received complaints from FIRE, Student Press Law Center, and other formal warnings about the violation of free speech regarding The Cadet. Since you discussed student journalism and freedom of speech as an essential issue, what advice would you give to VMI and the new administration in this area, given the situation in the country? Dan Farbman: It's a really interesting question. As you suggested, although I know a decent amount about the history of VMI because I teach the famous Supreme Court case in my constitutional law class, I don't know as much about the specific story of The Cadet. I'll restate what I would say to be my fundamental position on free speech, which is that people should be allowed to speak, and they should be allowed to express their strongly held views. This is less something that I think is legally commanded and more something that's sort of like ethically commanded, but that they should be humane and recognize the humanity of others. I think most student journalism that I've encountered does a good job of this. Sometimes that can be threatening; real speech can be threatening to institutions. In general, good faith, well-sourced oppositional reporting is a useful thing in any institution. I don't know the backstory of this, and so I'm reluctant to get out over my skis. The only time this becomes a problem is when some people have a monopoly on speech. If you asked me as a matter of First Amendment law, I would say it's probably simpler than that. Probably the State of Virginia should not mess with student speech, at least not try to suppress it… state suppressing speech, is generally bad and generally a violation of the Constitution. Cadets, faculty, staff, and the public can attend as Mr. Farbman and his opponent square off on these issues in an in-depth debate at the VMI Center for Leadership and Ethics on Tuesday, September 30, 2025, at 7:00PM. Further information and registration for this free event are at: https://steamboatinstitute.org/event/virginia-military-institute/ Can't attend? Watch the livestream at this link. Please help keep The Cadet independent by DONATING AT: www.thecadetfoundation.org