By Phil Huber, ADVANCE COLUMNIST
Donald Trump did not create America’s constitutional crisis alone. He inherited a political system already weakened by leaders who treated constitutional duty as a partisan tool, then learned how to exploit every loose bolt, broken guardrail, and act of institutional cowardice.
Mitch McConnell and Senate Republicans did not set out to create a Trump monster. They set out to create what they considered the perfect conservative Supreme Court: Ideologically reliable, durable, insulated from voters, hostile to regulation, and ready to reverse decades of legal precedent.
They succeeded.
Then they learned the oldest lesson in politics: When you build power without brakes, you eventually hand the keys to someone who does not believe in stopping.
Call it the Trump monster. Call it Frankenstein. The more accurate metaphor is this: Conservative leaders built the laboratory, assembled the parts, supplied the electricity, and were shocked when the creature began smashing through constitutional walls.
The story begins with a distinction that matters. Arguments about the Constitution’s text, history, and original meaning are not new. Lawyers and judges have long debated what the Framers intended and how much weight history should carry. But modern originalism—the highly organized judicial philosophy now associated with the conservative legal movement—was not the historic constitutional religion of the Republican Party.
It was developed as a modern political and legal project.
The Republican Party of Abraham Lincoln, Theodore Roosevelt, Dwight Eisenhower, and even Richard Nixon was not united behind today’s version of originalism. Eisenhower appointed Earl Warren and William Brennan, two justices who helped define the modern Court’s expansive reading of civil rights and individual liberty. Theodore Roosevelt criticized courts that blocked democratic responses to industrial inequality. Nixon spoke of “strict construction,” but that slogan was not the carefully organized, judge-vetting movement that followed.
The modern originalist revolution took shape in the 1970s and became a governing strategy during the Reagan administration. Attorney General Edwin Meese III announced in a 1985 American Bar Association speech that constitutional law should rest on a “Jurisprudence of Original Intention.” The Reagan Justice Department was not simply joining an academic debate. It was announcing an agenda: use the executive branch, federal courts, legal scholarship, and judicial nominations to redirect the Constitution toward conservative outcomes. (U.S. Department of Justice)
That was the beginning of an institutional project that went far beyond any one election.
The Federalist Society, founded in 1982, helped build the infrastructure: Law-school chapters, professional networks, litigation support, judicial candidates, and a common language of limited government, originalism, and opposition to what conservatives called judicial activism. (Federalist Society) The point was not merely to win arguments. It was to place judges on the bench who could reshape the country for decades.
Donald Trump did not invent that project. He was its most useful vehicle.
McConnell understood this better than almost anyone in Washington. In 2016, after Justice Antonin Scalia died, President Barack Obama nominated Merrick Garland to fill the vacancy. McConnell did not merely oppose Garland. He announced that the Senate would not meet with him, hold hearings, or give him a vote. Senate Judiciary Committee Republicans publicly pledged not to move forward with any Obama nominee. (Politico)
That was a conscious choice to deny a sitting president his constitutional role so that a future Republican president could fill the seat.
Then, in 2020, McConnell’s Senate performed the opposite maneuver. When Justice Ruth Bader Ginsburg died shortly before the election, the Senate rushed Amy Coney Barrett through confirmation. Barrett was confirmed on October 26, 2020, by a 52–48 vote, even though millions of Americans had already cast ballots (U.S. Senate Roll Call Vote No. 224)
The rule was simple: There was no rule. There was only power.
Those two maneuvers, together with Trump’s appointments of Neil Gorsuch and Brett Kavanaugh, helped produce the 6–3 conservative majority that now dominates the Court. The Court’s own biographies identify Trump as the nominating president for Gorsuch, Kavanaugh, and Barrett (Supreme Court of the United States)
On some issues, the Court has delivered precisely what its builders wanted.
In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade and Planned Parenthood v. Casey, declaring that the Constitution does not protect a right to abortion. (Dobbs v. Jackson Women’s Health Organization) This was not an accidental consequence. It was a central objective of the conservative legal and political movement for half a century.
In Loper Bright Enterprises v. Raimondo, the Court overruled the Chevron doctrine, which had generally required courts to defer to reasonable agency interpretations of ambiguous laws. The result is to shift more power from expert agencies to judges, making it harder for government to implement laws Congress itself wrote. (Congressional Research Service)
Again, that was no surprise. Weakening the administrative state has been a conservative objective for decades.
But then came the Frankenstein moment.
In Trump v. United States, the Supreme Court held that a former president has absolute immunity from criminal prosecution for conduct within his core constitutional powers and presumptive immunity for official acts. (Trump v. United States) The majority said unofficial acts remain subject to prosecution. Yet the real-world effect is delay, uncertainty, and a powerful legal shield for a president willing to blur the line between official authority and personal political survival.
That is where the Court’s conservative project becomes something more alarming. A Court designed to restrain government agencies and overturn liberal precedents has also enlarged the room in which a president can evade accountability.
The justices may say they were protecting the presidency, not Trump. But constitutional rules must be judged by how they work when the least restrained person holds office—not when a careful, honorable president does.
Congress deserves no less blame.
For years, too many members of Congress have substituted press releases for oversight and partisan theater for governing. They complain after presidents stretch their authority but refuse to use the powers the Constitution gives them: Appropriations, investigations, subpoenas, legislation, impeachment, and the power to set the structure of the federal judiciary.
Congress is not helpless before the Supreme Court. The Constitution does not say there must be nine justices. Congress has changed the Court’s size before, and proposed legislation has called for increasing the number from nine to thirteen. (Judiciary Act of 2023) That should not be dismissed as heresy. It should be debated seriously.
Court expansion is not a magic wand, nor should it be revenge. It could trigger escalation whenever political power changes hands. But neither should Americans treat nine seats as sacred, lifetime appointments as beyond reform, or an ethics code without enforceable discipline as adequate protection for democracy.
Congress should enact binding ethics, disclosure, and recusal requirements. It should seriously consider term limits. It should restore meaningful oversight of presidential power. And it should openly debate whether a Court captured through procedural hardball deserves to remain structurally untouched.
The Supreme Court Ethics, Recusal, and Transparency Act has proposed stronger ethical standards, financial disclosures, and recusal requirements for justices—basic protections that should not be controversial in a democracy. (Supreme Court Ethics, Recusal, and Transparency Act of 2023)
The most important point is this: McConnell and his allies did not necessarily intend to create a president who sees the law as optional. They intended to create a permanent conservative Court. But they pursued that goal through tactics that weakened constitutional norms, rewarded raw power, and taught future presidents that rules are merely obstacles to be routed around.
They built the laboratory. They assembled the Court. They weakened the guardrails. Trump merely showed them what their creation could do.
The public’s task now is not to admire the monster, excuse its creators, or wait for someone else to save us. It is to elect members of Congress willing to reclaim the powers they surrendered—and willing to put constitutional restraints ahead of partisan victory.
***
Phil Huber is a retired Army Reserve colonel, federal civil servant and consultant who writes on civic education. He lives in Fredericksburg.
Colonel, everything you say can be, and is, true.
But once again, like so many others, for what reasons I can only presume is your hope of not offending - whether it be grounded in honest revulsion of crossing that line with fellow citizens; or a realpolitik calculation of the need to not mention a truth in the hope that omitting it allows them an out without admitting guilt - I cannot say.
Maybe you can't either.
But once again, you ignore the elephant in the room (sophomoric pun intended, because yes, even at this late age, I find myself perfectly capable of immaturity, no matter how serious the subject).
In that, we should neither ignore, nor excuse - not only those who voted for this in 2024 - despite seeing all that had happened before then - (though some, including me, would strongly argue that it was there to see plain as daylight in 2016), but also those of us who know how horrible these actions are, yet continue to pretend they are merely an aberration.
A phase. A hiccup.
Whatever description allows one to continue to ignore it, and those facilitating it, no matter what line is crossed.
Because that would mean admitting that the gentleman sitting across from us at the barbershop, selling us our hardware nails, or lady singing in the choir while dressed in her Sunday best at church, is as much, if not more at fault - than the ones doing it are.
Again, why?
Trump, Roberts, Vance, whoever, are only doing the bidding of the ones who either did know, do know, or should have known exactly what they chose and are choosing.
This doesn't, and hasn't happened without them. Let's quit pretending they are also not at fault for their choices.
They've seen the evidence, heard the words. Hell, they could've read Project 2025 if they'd wanted to.
So why do we continually pretend it has nothing to do with them?
We have a sitting President and complaisant Congress, when under 10 of members in either house could choose otherwise and create a majority to stop this - that goes along with this by any means necessary. But they don't stop it, because they know that neighbor of ours will replace them in a heartbeat if they do.
Then they all, and us, pretend like it doesn't mean anything. And we let them have that pretense without challenge.
Why?
The result?
The power to raise or lower taxes on goods? Happens on a whim. Even with laws that state it shouldn't without Congressional consent. How?
Speaker Johnson passes a rule that the definition of a day is over 6 months long, because otherwise he would have to open it to debate and vote. And we all pretend that it doesn't matter.
Isn't he clever?
We steal from, attack, and threaten our dearest allies; while bending over backwards for those who would kill us, or the rule of law, civil liberties, or democracy we swear we love. With nary a word of complaint as long as the stock market goes well.
And the only way we can convince people this is bad is because the price of gas didn't go down? Our honor and principles are so cheap?
Citizens monitored, arrested, incarcerated, deported, and sometimes killed by secret police who are planning to illegally monitor voting places - all in the name of "enforcement" of a civil liability on par with a traffic ticket?
Wars determined by hopes of political gain and to serve foreign leaders of apartheid states who have more knowledge and input on that war - than our elected officials, a socialistic taking of wealth from companies again, on the whims of a tyrant, then promised to voters in return for their votes.
Murder on the high seas. Suppression of rights, destruction of public properties, as petty as who is allowed to sit for interviews on talk shows, as grandiose as arches of self-worship, or the vaccination or feeding of a child.
And none of that matters as much as not hurting someone's feelings?
I realized to my utter surprise a few years back that I do not share the same values of many of my neighbors when they voted for Trump. That the racism and ignorance that I truly thought we had outgrown never left, merely morphed into something that could be sold, under the right conditions, to the right people.
I've now come to another rude awakening, in that too many of the people who saw that truth, same as I did, have decided - by action, if not by word - that they'll live with it - if it means maintaining the status quo.
By doing so, if we are honest we now must admit we, as a people, are not as honorable, brave, or decent as we said we were.
I think that saddens me even more.
I then think of the document that Thomas Jefferson could and would write, if someone charged him today to draft one against such a tyrannical and irrational despotic regime.
Colonel, Sir, respectfully - something's got to give.
Yes, by all means - vote, argue, protest for change.
But please note, that's been tried, and we have to admit the reality that not only do a significant portion of our neighbors actively support such atrocities; but there also has been a significant portion of us who have shown that as much as they know it's wrong - the best they can muster is a sternly read letter that is read with their reading glasses moved far down their nose to show how mad they are.
Whilst they take the same money and maintain that status quo which is fueling many of these outrages we see on a daily basis. As mad as any of the actions of Suetonius's day.
Actions and inactions which do nothing but embolden those doing the taking. Much as Hitler was emboldened by Chamberlain in Munich.
No thanks.
Give me an Abdul El-Sayed arguing with passion and ferocity rather than a half-hearted exercise of Nancy Pelose kneeling in protest in kente cloth for a photo op and fundraiser.
If there's one thing the last 40 years of the empowerment of the oligarchs has shown, it's that this isn't working.
Time to try something else.
Constitutional amendments, court packing, boycotts, whatever - but again - something other than pretending either Trump or this weak kneeed Congress exist in a vacuum. Or have nothing to do with us.
Talk is fine. As is negotiation, compromise. But not to the point of giving away all of yourself that matters. I come from a place and time where a man's word was his bond. Principles matter, as do laws. And we're willing to give any and all of that away for a 5% return on our 401k or IRA?
That's all it's worth?
At that point, what is left?
A few extra minutes, scrambling for the sunlight, hoping the next one who falls is not you?
I think we can do better than that. I think we can be better than that.
I think we must at least try, even if in trying, we fail.
Cause we're out of balance. We've forgotten what matters. Who matters.
Better to at least try to remember that and live it again than merely sink into the abyss of indifference without even trying.
And if that means standing up to our neighbors, upon principle, rather than abandoning those principles or devaluing those principles - that to me is the choice our founders would've made.
Did make.
Maybe they were on to something we could learn from rather than merely waving a flag.
I'm open to suggestions.....