—Alemayehu Fentaw Weldemariam, Indiana University Maurer School of Law, Center for Constitutional Democracy
Introduction
This essay argues that the misuse of the U.S. Insurrection Act exemplifies what Jack M. Balkin calls constitutional rot—the erosion of civic virtue, trust, and institutional forbearance essential to constitutional democracy. Drawing on Andrew McCanse Wright’s theory of constitutional good faith, it contends that the constitutional crisis is not solely structural but moral: the decay of honesty, restraint, and shared enterprise among those who wield power. Through Martin v. Mott (1827), Luther v. Borden (1849), and Newsom v. Trump (N.D. Cal. 2025), the essay shows how executive discretion, judicial deference, and partisan distrust have hollowed out republican governance. It situates the American case within a global trend of emergency constitutionalism, from Hungary to Ethiopia, and concludes that constitutionalism everywhere now depends on a virtue it can neither codify nor compel—good faith.
From Constitutional Good Faith to Constitutional Rot
Andrew McCanse Wright reminds us that American constitutionalism cannot rely solely on mechanical checks and balances. Madison himself warned that “enlightened statesmen will not always be at the helm,” and thus sought to design a system where institutional ambition would substitute for virtue. Yet, as Wright observes, that very substitution is incomplete without good faith—the ethical restraint and fidelity of officials to the U.S. Constitution’s spirit. The Madisonian mechanism of “ambition counteracting ambition” presumes, at minimum, a shared moral horizon: that power will struggle against power within the bounds of constitutional integrity. When that ethic collapses, structure alone cannot preserve the republic. Constitutional function depends as much on honesty and self-regulation as on institutional design.
Jack Balkin’s concept of constitutional rot describes the opposite condition: the slow corrosion of civic virtue and institutional trust that leaves constitutions formally intact but substantively weakened. When power is exercised without integrity, legality becomes a weapon rather than a restraint. The Insurrection Act—which authorizes the U.S. President to deploy the military domestically whenever he considers that an insurrection exists—embodies this fragility. That single verb, considers, captures the crisis of modern constitutionalism: a system that presumes virtue in leaders who no longer practice it.
A Clause Waiting for a Crisis
Sections 252 and 253 of the Insurrection Act grant the President sweeping discretion to deploy troops whenever “unlawful obstructions” or “insurrections” make it impracticable to enforce federal law. William Banks calls this a constitutional defect and urges reform to “better describe the triggering mechanisms and processes” for domestic military use. Jeremy Campbell likewise warns that Congress and the American courts have failed to provide effective checks, leaving “the nation vulnerable to serious abuses of power for the sake of expediency.”
These theoretical concerns materialized in Newsom v. Trump (N.D. Cal. 2025) (albeit not in a case involving the Insurrection Act), where the State of California challenged the federalization of its National Guard during protests in Los Angeles. The United States District Court for the Northern District of California held that the administration’s use of federalized troops for domestic law enforcement violated the Posse Comitatus Act and rejected the claim that the President’s statutory authority to call up the militia provided any constitutional exception. Invoking the Founders’ warning against subordination of civil authority to military power, the court reaffirmed that the army cannot serve as a domestic police force. It was a fragile victory for the principle that power must be exercised in good faith, not political expedience.
The President Who “Finds”
In Martin v. Mott, 25 U.S. 19 (1827), the U.S. Supreme Court held that the President’s determination of an emergency under the Militia Act of 1795 was “conclusive upon all other persons.” That decision, rooted in an early republican faith in virtuous leadership, has since evolved into a doctrine of judicial deference bordering on blind trust. The law’s assumption of presidential good faith now enables executive abuse. A statute written to preserve order during rebellion has become a tool to suppress dissent, allowing a president to redefine protest as insurrection. When legality depends on the moral character of its interpreters, and that character decays, government drifts from emergency power to government by emergency.
Judicial Deference as Constitutional Evasion
From Martin v. Mott to Luther v. Borden, 48 U.S. 1 (1849), judicial deference has shaped the constitutional treatment of emergencies. In Luther, the U.S. Supreme Court confronted Rhode Island’s “Dorr Rebellion,” a popular effort to replace a colonial charter government that disproportionately empowered rural elites. When rival governments claimed legitimacy, the Court declined to decide which was lawful, declaring the question political rather than judicial. Chief Justice Taney wrote that “under this article of the Constitution it rests with Congress to decide what government is the established one in a State,” thus insulating the issue under Article IV, § 4—the Guarantee Clause.
As Erwin Chemerinsky (2023, 153-155) notes, Luther established the enduring rule that claims under the Guarantee Clause are nonjusticiable political questions. The Court reasoned that judicial intervention could invalidate an entire State government and that no “judicially manageable standards” exist to define a “republican” form of government. This position has been consistently reaffirmed—from Taylor & Marshall v. Beckham (1900) to Pacific States Telephone & Telegraph Co. v. Oregon (1912)—ensuring that no state action has ever been invalidated on republican-form grounds.
What began as pragmatic caution hardened into judicial abdication. By refusing to articulate criteria for republican governance, the U.S. Supreme Court withdrew from the very terrain where constitutional meaning is most contested. In an age of performative authoritarianism, such restraint becomes complicity in the degradation of republican institutions themselves. Balkin’s “constitutional rot” thus extends to the judiciary: a failure not of law, but of courage. When courts hesitate to police the boundaries of republican government, they leave those boundaries to the very actors most inclined to breach them.
The Limits That Don’t Hold
The Insurrection Act formally limits the President to protecting “federal people, places, and things.” Functionally, its elastic phrases—“whenever the President considers” and “such measures as he considers necessary”—invite boundless discretion. In a polarized political climate marked by mass protests, conspiracy-driven politics, and deep mistrust of institutions, the fiction of “insurrection” can justify occupation. During the summer of 2020, President Trump threatened to deploy troops against racial-justice demonstrators; five years later, similar rhetoric accompanied the federalization of the National Guard during immigration raids and urban unrest. In such moments, the language of law enforcement blurs into that of civil war. Congressional oversight remains theoretical; partisan paralysis ensures impunity. As both Wright and Balkin imply, constitutions rely less on written constraints than on the invisible ethic of fidelity that makes those constraints meaningful.
David C. Williams observes that the American founders envisioned a republic animated by civic virtue—a “body of the people” capable of disciplining power through self-restraint. That moral architecture has deteriorated. The crisis of the Insurrection Act is not that it authorizes tyranny, but that it assumes trust in a President’s conscience. When constitutional design outlasts constitutional virtue, legality endures only as ritual. The law functions, but the faith that gives it legitimacy has expired.
Constitutionalism in the Age of Exception
The American dilemma has global counterparts. From Hungary’s “state of danger” to France’s normalized emergency laws and Ethiopia’s eternal recurrence of states of emergency, liberal orders are succumbing to executive dominance justified by necessity. Each depends on the same premise: that discretion, exercised in good faith, will not degenerate into domination. The recurrence of emergency as governance signals the collapse of that moral assumption. The rhetoric of “plenary power” transforms presidents and prime ministers into sovereign deciders—a logic Carl Schmitt would recognize and Madison would abhor.
Neither constitutional text nor institutional architecture can manufacture good faith. The insights of Williams, Wright, and Balkin converge: design without virtue is hollow. The United States’ reliance on self-restraint as an unwritten norm has become untenable. Federations like Ethiopia face the same challenge—to domesticate violence while distrusting those who command it. Constitutionalism after trust must therefore begin with constitutional ethics: the cultivation of civic integrity rather than the multiplication of legal mechanisms.
Conclusion
What remains is the skeletal architecture of checks and balances—a system born of suspicion, not harmony. It can delay decay but cannot reverse it. Once constitutional actors cease to act in good faith, law becomes a weapon, not a limit. The Insurrection Act thus stands as both symptom and symbol of constitutional rot: a statute that presupposes virtue in an age of cynicism. Constitutional democracy does not die when constitutions are suspended; it dies when their interpreters cease to mean what they say.
Suggested citation: Alemayehu Fentaw Weldemariam, The End of Good Faith Constitutionalism: The Insurrection Act and Its Global Echoes, Int’l J. Const. L. Blog, Oct. 28, 2025, at: http://www.iconnectblog.com/the-insurrection-act-and-its-global-echoes/