Jack talks with Columbia Law professor David Pozen about Pozen’s recent Boston Review essay with Jedediah Britton-Purdy, “What Are We Living Through?” They discuss three competing ways of understanding the Trump administration—authoritarian rupture, continuity with long-running dysfunction, and a transition to a new constitutional regime. The conversation explores whether all three can be true, what kind of damage may be irreversible, and what rebuilding might look like after Trump.
Mentioned:
“What Are We Living Through?” by David Pozen & Jedediah Britton-Purdy (Boston Review, Oct. 15, 2025)
“Hardball and/as Anti-Hardball” by David Pozen (Lawfare, Oct. 11, 2018)
Thumbnail: Donald Trump speaks at an event in Maryland in February 2024. (Jonah Elkowitz, Shutterstock.)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Today I’m going to have a chat with David Pozen of Columbia Law School who wrote an article with Jed Britton-Purdy called “What Are We Living Through” in the Boston Review about 10 days ago, I think. I thought it was a terrific essay and I thought we should discuss it.
David, in the first paragraph you ask, I’m just going to read a few sentences, what kind of moment are we living through? Is our system of government undergoing a cyclical swing, an existential transformation, or something in between? Nine months into the second Trump administration, Americans confront three very different answers to these questions. And then you offer three answers.
So if you could just tell us what those are, we can start off with the conversation. And by the way, this is a question that lots of people are asking, so it’s great that you have three answers.
David Pozen: Thanks, Jack, for having me on. The essay grew out of Jed and I having conversations, trying to get our bearings and experiencing disorientation where some relatives and colleagues telling you that you have to flee the country, others telling you that that’s Trump derangement syndrome. And it’s always hard to tell what kind of moment you’re living in, but the degree of disorientation seems qualitatively greater now.
So we basically identify three main camps or schools of thought about what’s been happening in the past nine months or so. And should I run them through?
Yeah, just run through each of them and then we’ll talk about them.
Okay, great. So the first, we call authoritarian crisis. And this has quickly become the conventional wisdom among the liberal and centrist establishment. Think The New York Times or The Atlantic. And the idea here is that there’s an authoritarian playbook, as it’s often called. It’s been used by leaders like Erdogan in Turkey or Orban in Hungary. And Trump has followed it line by line. He has persecuted political opponents. Think of Letitia James or Jim Comey or Adam Schiff. He has rewarded political friends. Think of Eric Adams or the pardons for the January 6th riders. He has targeted sites of countervailing power in civil society, like the media and universities and law firms. He’s demonized enemies and vulnerable groups like immigrants and trans people. He’s declared endless emergencies. He’s sidelined the legislature. He’s manipulated official data. He’s preparing to rig elections. He’s preparing to use the military domestically, on and on.
And there are a lot of variants on this diagnosis. But on all of these accounts, there’s been a profound shift in American law and democracy. And both the rule of law and democracy are on the ropes. Some versions emphasize the kind of self-enrichment or corruption aspects of what’s happening and prefer to describe it as kleptocracy or patrimonialism or sultanism. Others emphasize the violence of ICE or the iconography of DHS or the personality cult around Trump and think it’s amounting to fascism. We use authoritarian crisis to stand in for this array of views that democracy is in grave peril here. Should I go on?
Yeah, good. I think we should get all three out on the table.
I’ll be quicker. The second view, we call it more of the same. And if the first view, authoritarian crisis, is mainly associated with liberals and centrists, this is more associated with the left. And it’s the idea that Trump is a kind of lurid symbol and apotheosis of long-running pathologies rather than an agent of historical rupture.
Some of what he’s done is just standard Republican fare taken further—tax cuts for the wealthy and corporations, hostility to abortion and affirmative action, economic environmental deregulation. This is familiar, even if more extreme. Other parts of his agenda intensify bipartisan patterns. Harsh immigration enforcement was familiar from, say, the Obama administration and his record-setting deportation program. The consolidation of presidential power is, of course, a long-running trend you yourself have written extensively about. The growth of the national security state is another long-running trend.
So on this view, the more of the same view, seeing Trump as some kind of shock to the system flatters the pre-existing system, which has long been marked by democratic dysfunction, executive abuses, and racial repression.
And then the third view is the most sympathetic view to Trump and is in a sense the official story of the Trump administration that his advisors and supporters often channel, which is that we’re undergoing a constitutional regime change, we call it. Not an authoritarian crisis, but a shift in the constitutional order.
And this view emphasizes that the U.S. Constitution is the hardest to amend in the world, and so major constitutional transformations typically happen here through political and social movements. And MAGA is such a movement. On this view, just as FDR revolutionized the constitutional order in the New Deal, breaking a lot of norms and grabbing a lot of power in the process, so is Trump.
And the campaign previewed a lot of what Trump is now doing, from cracking down on illegal immigration, to shrinking the federal workforce, to eliminating DEI. And if liberals are shocked and appalled by some of these changes, well, conservatives were shocked and appalled by some of the changes wrought by the New Deal and the Civil Rights Revolution, the Warren Court, and its aftermath.
So in short, liberals waged successful constitutional revolutions in the early to mid and mid to late 20th centuries, seizing hegemonic control over law and culture, and now the right is doing the same. And this isn’t breaking the Constitution; it’s just ending an era. It’s a transition to a new constitutional regime after the prior one lost its legitimacy.
And I map, Jack, I map these three positions not to say that any is right, and they’re certainly not morally equivalent, but it’s an attempt just to parse where people seem to be in making sense of the moment.
Great. So I want to ask you lots of questions about these, including in some of the points you made about them. The first is, so I’ve been struggling with this question: where are we? What is the significance of what’s going on?
And the first thing that struck me when I read your essay is that there are elements of all three of these things going on. And so one question is, can all three be true? And so I guess that’s the question.
Yeah, we—
In some respects?
In some respects, yes, I think all three can be true. And more than that, capture a core political truth. And so it makes it hard to dismiss any of them out of hand, even if they all have vulnerabilities.
The constitutional regime change view, which I think is the hardest for liberals and progressives to get their heads around, I think has an important point—that reconstructive presidencies can and have changed the constitutional order, that some kind of liberal hegemony is not inevitable. It’s a category error to mistake a current constitutional regime or settlement for the Constitution. And the fact that a new administration comes in and outrages political opponents and disrupts settled norms doesn’t in itself mean it’s illegitimate. And indeed, progressives may well want a preferred president to do a version of the same in the future.
So I think the constitutional regime change story has an important point about how constitutional change happens in a country where formal amendments are extraordinarily rare.
At the same time, the authoritarian crisis story, I think, captures an important point that even if a new political regime starts out pursuing constitutional change in more or less familiar ways, it doesn’t mean it won’t end up shattering both constitutionalism and democracy. Authoritarianism is a real possibility even in a mature democracy. There are unmistakable signs of its spread that I began by cataloging. And so it’s not exculpatory for the Trump administration that it’s pursuing regime change if the form it’s now taking is authoritarian.
And then on the more of the same critique, I think the crucial point is that defeating authoritarianism, at least in the U.S. context, demands that we reckon with the underlying forces, social conflict, and economic struggles that brought Trump into power, and just retreating into the prior dispensation isn’t enough. Trump is, to some degree, a symptom, not a cause, of democratic breakdown—although we can debate exactly how much. And so we really need to address the deeper roots of the discontent that led us here.
So ultimately, we think that there’s something important about holding all three positions in mind, even if we personally are more associated with some combination of the first and second.
Yeah. You also say in the essay—I’m reading from it now—like other aspects of American polarization, the competing scripts reflect differences in worldview that go beyond what any fact-checking could resolve. So, while I see elements of all three going on and I think it’s useful to bring all three lenses or scripts to bear, there’s also a sense in which for many people they’re mutually incompatible. I mean, the centrist liberals who think this is authoritarianism and the Trumpists who totally buy the regime change thing and think that they’re basically FDR in reverse—these are, in some sense, despite what we just said, incompatible worldviews, I think. Yes or no?
Okay. I think they may reflect and stem from deep disagreements. I don’t know, “incompatible” maybe—maybe too strong.
A bit strong.
But I guess I would put it this way: I think all of these positions on where we are now implicitly tell a story about what came before.
This may go to the difference in worldviews you’re noting. The stories they tell about what came before are very different, and therefore about where we may be heading. So on the authoritarian crisis account, at least most versions, what we had prior to Trump was a reasonably well-functioning democracy that was very different from authoritarianism, so that we’ve entered a qualitatively new period in our political history.
A lot of the more of the same commentators don’t accept that view of recent American history. They point out that there’s been rampant inequality for many years. There’s been brutal treatment of immigrants and poor minority communities for many years. This whole literature on racial authoritarianism, which has in some sense now been generalized. We have a notoriously undemocratic constitutional system in which the preferences of most Americans basically don’t get factored into the outputs of the government. I could go on.
But on this account, basically, Democrats and Republicans weren’t that different. We basically had a rotation of neoliberal elites prior to Trump. Trump may be making things worse or heightening the contradictions, but we’ve always been a flawed democracy with authoritarian tendencies.
And so these great-man theories of change aren’t helpful or interesting. We really need to address the deeper forces here.
And then on the constitutional regime change view, we also had a flawed democracy prior to Trump—but not necessarily because of the factors I just cited, but because of all the ways in which liberals exerted ideological and institutional control over conservatives and used the courts and universities and the media to push their own hegemonic agenda.
So I would say the incompatible worldviews mainly are a feature of what came before. But as far as where we are now, I do think it’s possible to hold all three and think that Trump is trying to effect the regime change, that he has exhibited unmistakable authoritarian tendencies and designs, and that this transcends Trump and is a story about a larger constitutional rot and democratic breakdown.
I want to pick up on the “trying to affect the regime change.” You noted, quite correctly—I’ve been making this point also—that it’s still very early. I actually think last week may come to be viewed as a pivot point with the tariff case not going well for the president, with the New York mayoral election, with the Nick Fuentes stuff, and other things that have been happening.
I also think that while Trump has been massively disruptive and done some terrible things, his positive reconstructive program—I guess it’s a negative program—but it’s not clear to me how lasting it’s going to be. So I just wanted to get your comments on the significance of “it’s early.”
And then you also had a point that most constitutional revolutions or constitutional moments happen with much more sweeping elections, with congressional support. Trump doesn’t have either one of those things. So I guess I’m wondering—you alluded to whether he’s going to succeed in this kind of revolution. Just give me your thoughts on this.
Yeah, I think there’s radical uncertainty here looking forward too, for some obvious reasons and maybe a few less obvious ones. It’s still less than a year into the presidency. The president’s party tends to lose ground in the midterm elections. We maybe got a preview of that with last week’s elections.
Trump has never enjoyed majority support, and his popularity with independents is at an all-time low, I believe. So all those factors suggest that this could break any number of ways.
But beyond that, there are some political scientists who will tell you that there has never been democratic backsliding of the kind the U.S. is now experiencing in a democracy with high per capita income and a history of peaceful rotations of power—at least four election cycles of peaceful transitions. And in light of that, no statistical model would have predicted what’s already happened: that we would get the kind of democratic backsliding we’ve had. And that makes it harder to predict where we’re going to go. We’re kind of operating in new terrain here—what’s going on.
So where might this lead? And then you added the point that generally when we talk about constitutional regime changes, we talk about what Bruce Ackerman calls constitutional moments, where you have large and sustained majorities that can legitimate constitutional change even in the absence of a formal amendment. And that generally involves transformative legislation, which I don’t think the “big, beautiful bill” is at all.
And so historically and democratically, Trump is on really shaky ground in saying he’s pursuing a revolution or counterrevolution, given the degree of unilateral action he’s taking and the lack of either—not even supermajority support, even simple majority support—in the population and in a big legislative program.
So where is this going to go? I, of course, don’t know. I could see one future where Democrats take back the House in 2026, the presidency in 2028, and basically by 2029 we’re restoring norms gradually and government capacity and important social programs.
But of course, we could have Trump’s handpicked successor winning in 2028 under less-than-free and fair conditions, and the kind of oligarchic repression deepens. Or we could have Trump engineering some version of the Reichstag fire and declaring an emergency and deploying the military domestically, and we’re galloping toward fascism in a few months.
So I think the wildly discrepant diagnoses on where we’ve been are paired with extreme uncertainty about where we’re heading.
Let’s do one more question about radical constitutional change, constitutional moments, reconstructive presidents, and whether he does need Congress. His program is negative. It’s destructive. It’s deregulatory. It’s incapacitating. He’s trying to delegitimate institutions.
I think he’s succeeding in that score, and I’m wondering whether that might add up to a type of—I mean, I don’t know where it leaves us—but whether he can make those kinds of fundamental constitutional changes without having to have Congress on board with it, without even having to have the court on board for all of it. It just seems to me to be a different kind of constitutional regime change.
That’s interesting. I haven’t thought enough about that. I think you’re right that there’s an asymmetry there in what presidents can do on their own in building or breaking. And some of his moves will have long-term consequences, especially in stripping agency capacity.
That said, I guess it still seems to me that in the absence of bipartisan support and major legislation that the court then upholds, what he’s doing is more easily unwound by a future administration than if he were able to muster an actual New Deal–style reform program.
Let me give you an example, and we don’t need to continue on this, but the Justice Department. I think it’s going to be very hard to reconstitute the Justice Department in the kind of idealized fashion that we imagined it after Watergate for 50 years—where it really was separate from White House control, where it really did have a type of independence, where really its ambitions and largely its success was to remain an independent, quasi-independent, apolitical institution.
I think that’s going to be extremely difficult to reconstitute. And I think there are going to be other institutions like that that are going to be difficult to reconstitute. That’s kind of what I meant. I agree—maybe the Democrats, if the politics turn out well, can reconstitute USAID, etc. But I just think some things are going to be hard to put back together and will amount to something close to constitutional differences, at least in terms of how Article II operates.
But I still think—right, that could break a number of ways—even if it’s right that the Justice Department, as it’s been known, will be hard to reproduce. You could imagine a future effort at a kind of third reconstruction, if you will, where we basically rethink these institutions and don’t just try to restore them. And I’m not sure this works as well for the Justice Department, but it’s just to say it may be true that, given the damage Trump has done, we’re going to need to not just revert back to the status quo ante but reimagine structures of government.
But we’ve done that before. That happened, in a way, in the area of national security and war powers in the 1960s and 70s—particularly the 70s—when we got the War Powers Resolution and the rise of the intelligence committees and FOIA and FACA and transparency laws and all those other reforms. But just to say, after a moment of perceived breakdown there with the Vietnam War and Nixon, we didn’t just reproduce or try to bring back the old institutions, but we remade them. And that may be a necessary project to get beyond this in the future.
I just want to make one point—you don’t need to comment unless you want to—and then I have a couple more questions. It really depends on what—let’s say the Democrats win in 2028—what happens next. There seems to me to be growing evidence that, again, way too early to tell—it seems to me to be plausible to think that Democrats in charge of the presidency, especially a populist Democratic president, are not going to be engaged in imaginative reconstruction. They’re going to use the tools that Trump has shown them how to use, I predict, to weaponize or at least use the presidency aggressively to achieve their aims against their enemies.
This is a prediction. My point is, you may be right. A lot of it depends on what the next round looks like.
Yeah, I think that’s undeniably true. I’ll just say right now, I think a tension that progressives or Democrats or liberals face—opponents of Trump face—is that some of the standard prescriptions for responding to authoritarianism, what some people call the “anti-authoritarian playbook,” are precisely about limiting possibilities for this kind of escalating cycle of tit for tat.
So they emphasize: defend the courts at all costs—those are the bulwarks of the rule of law. Try to limit government capacity to do damage. Try to form broad bipartisan coalitions with any ‘Never Trump’ conservatives you can find. And basically have a minimalist politics built around stopping the bad man, Trump.
That set of prescriptions is just very different from what I think a standard progressive response to the more of the same diagnosis is, which is: The system is badly broken. The problems are fundamental. So we need fundamental reform. We need to get rid of the filibuster. We need to do court reform. We need economic populism in some ambitious sense.
And that kind of much bolder set of responses to Trumpism potentially plays into some of what you’re describing.
Yeah. And I’ve been hearing—again, not doing any scientific analysis—but hearing both, and mostly the latter, from the people in my... Eric Holder was on a couple of days ago saying, we have to pack the courts when we get the power back, for example. Anyway, a couple more—but I’m not suggesting that’s going to happen. I’m just saying it’s a possible future. And I think you’re suggesting that that would not be the optimal future. Is that what I’m hearing you say?
Well, I mean, I would say in the piece, Jed and I talk about how what seems to be needed for those opposed to Trump is a merger of the anti-authoritarian—and it is happening already, I think—the anti-authoritarian and the more of the same camps, where the more of the same camp recognizes that something genuinely authoritarian is happening here. We do need to shore up the rule of law and basic democratic institutions. But the authoritarian crisis people, for their part, recognize that there are deeper roots here.
And so we have to address plutocracy and gerrymandering and some of the obvious sources of our current dysfunction. And so that doesn’t yield a clear set menu of reforms like what you do with the courts, but it suggests we’ll probably need a combination of preservative, classic anti-authoritarian moves and bolder reforms that actually speak to the legitimate grievances Trump has been able to exploit.
You say in the piece, I think it’s maybe related to what you just said, any hope of containing its authoritarian threat in the United States depends in part on driving a wedge between Trump’s general policy agenda, which has plurality support in key respects, and his most extreme abuses of power. I’m not sure I understand what that looks like.
I know that’s vague. I think the idea we’re getting at there is some aspects of Trump’s program are neither clearly authoritarian nor unpopular. Shoring up the border, even if what he’s done with ICE domestically has been highly unpopular. Some of his critiques of wokeism, some of his economic program, are seen within the sphere of legitimate policy changes that presidents make all the time.
And what is really distinctively both authoritarian and extremely unpopular, if polls are to be believed, are some of his more—his cruder—power grabs, some of the corruption and getting his private jet from Qatar, or his trying to deport people without any due process or hearing, flirting with defying judicial orders. These are all wildly unpopular, if polls are to be believed.
And so the idea is basically to isolate what’s truly a distinctive threat to the rule of law and democracy here. And that is something you can build a supermajoritarian coalition to oppose while conceding what is legitimate in the Trump program. I know that’s vague, Jack.
No, that’s good. I’m going to read one more sentence, which is kind of a wrapping-up point, and give you the last word. You say, “it is even harder at present to envision a constitutional modus vivendi spanning all three camps, with recognition of legitimate disagreement bounded by accepted limits on the stratagems of power. In the absence of one or the other form of common ground, there will continue to be sharp and at times surreal disputes over the most basic civic questions, including whether the republic is flourishing or disintegrating.”
For me, that kind of resonates with the beginning of the essay. And I’m just—where are you right now? Where does this leave us?
Right. I’ll just say two things maybe about that final passage. So one, the point about the surreal situation at the very end is a reference to a deeper form of polarization, if you will, that we’re now living in—where beyond just our disagreements about particular policies or candidates or parties, we no longer can even agree on the basic shape of society and the kind of moment we’re living in. So that epistemic polarization bordering on epistemic derangement is the proposition there.
On the how to get out of this, we basically just gesture toward two routes to overcome Trumpism. One would be a kind of broad coalition making common cause around some probably modest agenda that would sideline Trump and his worst abuses. That we say is just hard to imagine right now, given the degree of polarization we’re living under, Trump’s degree of control over the Republican Party.
The other route would be that the first two camps, the anti-authoritarian and anti-oligarchy positions, find a way to work together and construct a lasting majority themselves with a program that marries the core critiques of both. And that seems more plausible to me, although also extraordinarily hard to get there.
Maybe, Jack, since you had emailed me about gerrymandering, I’ll try to make it more concrete by just a note on that. So what do we do about gerrymandering? Trump has, of course, encouraged gerrymandering in red states, and blue states are now responding in kind. So the first solution alluded to at the end of that passage you read, where Democrats and Republicans get together, would look like a kind of détente where everyone agrees not to gerrymander. That’s almost impossible to imagine right now.
The other version, though, of overcoming rampant partisan gerrymandering and all the distrust in elections and public institutions that that tends to foster, would probably involve—this is Joey Fishkin and Rick Hasen have been writing about this recently—Democrats playing hardball. And if they were to control, as Hasen and Fishkin write, Congress and the presidency in 2029, abolishing the filibuster so as to force through an anti-gerrymandering reform—some kind of independent commission model for all of the states. And so that would be another way to get beyond one specific problem associated with gerrymandering. But it would involve aggressive, coordinated action by the left and the center rather than a bipartisan compromise.
And I’ll just say, I think it was for Lawfare some years ago, I wrote a piece on hardball and anti-hardball, where I suggested generally that anti-hardball are policies that reduce the stakes of partisan conflict and forestall or foreclose tit-for-tat cycles of escalation. And I say generally the best case for hardball is if it’s in service of anti-hardball.
And so that might be one way to think about it. I wouldn’t favor Democrats ever pursuing retribution for its own sake or imitating some of the vices of Trumpism. But if there’s a case to be made for aggressive action on the Democratic side that’s pushing boundaries, I think it would be best justified in the register of anti-hardball—that we need to get beyond partisan warfare, and some wildly popular moves like independent commissions are unattainable in the absence of aggressive action to get there.
So, Jack, this doesn’t add up to any kind of set of prescriptions or how to get beyond where we are now. It’s much—Jed and I felt like we’re much more able to map current divisions than to offer a way out of them. So these are really speculative thoughts.
Everything in the essay is super interesting. I highly recommend it. It’s What Are We Living Through? It’s in the October—it’s dated October 15th, 2025—in the Boston Review.
David, thank you so much. That was great.
Thanks, Jack. Appreciate it.
