Jack Rakove in conversation with Larry Kramer

Speaking of which, so let me talk about the idea of constitutional failure and how you distinguish it from crisis and what I'm up to.

So the working title for this talk and also for a kind of, I won't say a bad project, but something I'm working on on the side, is to do a piece called A Theory of Constitutional Failure, The American Case.

And let me make a couple of preliminary remarks about this.

Historians don't theorize.

When it comes to theory, we're very pragmatic.

I rely a lot on a talk, a lecture, one of my former professors, Oscar Handlin, gave called Theory in History, which says, you know, we're not here to test theories.

We're not here to develop them or refine them.

But when they're useful, why not apply them? In my case, we might have my first book, a book by Hannah Pitkin on the concept of representation.

I won't go into the details, but for me it was very helpful.

But I did start thinking about failure as an operative term for a couple of reasons.

So for starters, I would have said that the reelection of Donald Trump, November 2024, was itself a constitutional crisis.

I should say it was a constitutional crisis in and of itself.

And why would I say that? Well, here we know on the basis of January 6th and numerous other data points, here the American people in their wisdom have reelected a president who basically tried to subvert the fundamental rule of any democratic government, which is whoever wins an election, you know, has the right and the authority to exercise power.

So having Trump in power would be a crisis in and of itself.

And so in that sense, crisis itself, though useful in its way, it seems to be a theoretically adequate term.

The second point, which is actually related to the first, there's a, contributed a chapter to a volume of essays published by a couple of English Uyghur scholars, now I'm blanking on their names, Chris something or other, And the title of my essay was Impeachment Responsibility on Constitutional Failure from Watergate to January 6th.

And the failure part comes to the basic point when you come to both of Trump's impeachments, but particularly the second one.

You might argue or quibble a bit about the first, but I think the second one is wholly unambiguous.

It's fairly clear that the United States failed to discharge its assigned constitutional responsibility.

If you read the relevant narrative accounts, of what happened in terms to impeachments.

I mean, it's clear that the Republicans with manifest ulterior motives and Democrats with somewhat inadequate motives of their own didn't really wanna take the trial seriously.

So here you have a president who committed what seems to be the greatest offense conceivable in any kind of democratic regime.

And the trial should have been done in good faith.

Witnesses should have been called.

The evidence should have been adduced.