A few days ago, I had the occasion to debate Michael Klarman, the Charles Warren Professor of Legal History at Harvard Law School. Colgate asked us to address the following question: “Is There a Constitutional Crisis? How Would We Know?” Many asked me to post the video of the debate, which is available below. I was also asked to respond to factual assertions made by Professor Klarman, who invited such fact-checking during his remarks.

Professor Klarman stated at the outset that he would present a condensed version of a talk he had given at Harvard. As a result, he did not focus on the specific question presented beyond saying that what constitutes a “constitutional crisis” means different things to different people. Instead, he presented a list of grievances against Trump, the MAGA movement, the Supreme Court, Congress, and the media as evidence of the rise of fascism and authoritarianism in America.

The result was a bit of a disconnect between our remarks. I addressed the common claim of a constitutional crisis and why I do not believe that we are in a true crisis. I have rejected that claim for decades as hyperbolic and unfounded.

Given Colgate’s framing of the debate, I did not respond to many of the specific claims made by Professor Klarman. After the debate, some faculty members and students asked if I disagreed with some of those claims. I thought that I would respond now.

At the outset, I appreciate the invitation of Colgate to address this important question and the work of our moderator, Cornell Law Professor Stephen Garvey. I also want to thank Professor Klarman for his participation and his candor. Although the debate became sharp at points, I still believe that these events are important efforts to expose students to opposing views on the difficult issues facing them and our country.

I should also note, as a threshold matter, that I do not agree with much of Professor Klarman’s characterization of our current conflicts. This includes his repeated references to “fascists,” “ICE thugs,” and analogies to Nazi Germany and the Holocaust. During the debate, he stated:

•”[The Republicans] are trying to steal the 2026 election.”

•”[The Administration] is indifferent to suicides committed by transgender youths. There is a word for that. It is fascism.”

•”[The Administration] is essentially telling the world go ahead and attack [transgender people] we don’t care.”

•”They are indifferent to higher death rates among African Americans.”

•”Many [republicans] are very uninformed…many do not read newspapers…”

•”There will be a pretext…I do not know how far it will go…What happens when …. [they[ shoot down immigrants in the streets… seize voting boxes…put troops in democratic cities to intimidate people from voting…that is terrifying.”

It is clear that Professor Klarman truly believes these things and, as he correctly noted, there is subjectivity in how we view the same events or controversies. I credit Professor Klarman for wanting to have an exchange on these issues.

Professor Klarman started his remarks by noting:

“I am going to be extremely factual. Everything I say I can cite check chapter and verse for. You are right to beware of misinformation today but you are not going to get any of it from me.”

He later added that he had spoken completely factually and challenged the audience with “what did I say that is not true?”

I did address a couple of factual assertions during the debate. For example, Professor Klarman claimed that

“[Trump pardoned] violent insurrectionists including several who were directly responsible for the death of police officers.”

As I pointed out, only one person died during the January 6 riot, a protester named Ashli Babbitt. The claims that police officers died that day are false, though often repeated by politicians and pundits. The New York Times helped spread the false claim that Capitol Police Officer Brian Sicknick died as a result of being hit with a fire extinguisher. Sicknick suffered two strokes and died of natural causes the day after the riot. As a past correction states, “The medical examiner found Sicknick died of natural causes which means ‘a disease alone causes death. If death is hastened by an injury, the manner of death is not considered natural.’ Four other officers committed suicide days to months later.” Other officers died months later from such causes as suicide, but there is no direct causal link to the riot.

I would like to now address five additional claims.

1. “[Undocumented persons are being] deported without due process. Kavanaugh has said go for it, not constitutional problem.”

I am not sure what Professor Klarman was referencing here.  However, in cases like A.A.R.P. v. Trump, Justice Kavanaugh joined his colleagues in halting deportations to protect the due process rights of these undocumented persons. It was Justices Alito and Thomas who dissented to allow removal under the Alien Enemies Act. The majority stated that the Administration “erred in dismissing the detainees’ appeal for lack of jurisdiction.” Kavanaugh wrote a concurrence stating:

“The circumstances call for a prompt and final resolution, which likely can be provided only by this Court. At this juncture, I would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues. Rather, consistent with the Executive Branch’s request for expedition—and as the detainees themselves urge—I would grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.”

In 2025, he did vote with the majority in a 5-4 decision on Venezuelan immigrants. It allowed for deportations to continue in ruling that the challengers erred in not bringing their challenges as habeas corpus claims. However, it also ruled that the alleged gang members need to be given notice of deportation and the opportunity to contest the deportation. Kavanaugh voted in favor of that position. I may be missing what Professor Klarman is referencing but Kavanaugh has repeatedly voted in favor of due process rights, even if it may not be as robust as Professor Klarman might have wanted. There are cases under this and prior administrations allowing for immediate deportations near the border that occur within a certain period of time. I cannot see any decision where he has effectively “said go for it” and deny any due process.

2. “Washington Post fired a journalist who simply reposted words from Charlie Kirk’s mouth” and “[Bezos] just fired a journalist for basically saying something that is true.”

Professor Klarman made repeated claims about this controversy. It appears to be a reference to the termination of former Washington Post columnist Karen Attiah. However, it is not true that she was fired for “simply reposting words from Charlie Kirk’s mouth” but for making racially inflammatory comments in direct contravention of both Washington Post policies and prior warnings from her editors.

Soon after Charlie Kirk’s assassination, Attiah went on to Bluesky to post an attack on him with reference to his race. In one, she declared: “Refusing to tear my clothes and smear ashes on my face in performative mourning for a white man that espoused violence is….not the same as violence.” In a second posting, she wrote, “Part of what keeps America so violent is the insistence that people perform care, empty goodness and absolution for white men who espouse hatred and violence.”

Those were the comments cited by the Washington Post for its actions. The Post stated  “Your postings on Bluesky (which clearly identifies you as a Post Columnist) about white men in response to the killing of Charlie Kirk do not comply with our policy.” The Post prohibits postings that disparage people based on their race, gender, or other protected characteristics.

Sources told the media that Attiah had been confronted multiple times by the paper’s management over her inflammatory social media posts. This includes one in 2020 where she ended up apologizing on social media for erroneously saying that a new French law targeted Muslim children. It is simply not true that the Post fired her for quoting Kirk.

3. “ICE agents acting as thugs are kidnapping people off the streets…They are building concentration camps… they show up on streets without any identification.”

This is a common claim made by politicians and pundits. However, it has been debunked as untrue. ICE agents wear vests and badges that identify them as law enforcement. As with other law enforcement agencies, ICE agents in plain clothes are presumably used on occasion. However, in making an arrest, officers identify themselves as law enforcement. While widely claimed, there has been no evidence submitted (that I know of) of a systemic failure of officers to identify themselves when making an arrest or taking someone into custody.

ICE is not kidnapping people. Once arrested, these individuals are input into an electronic system. Kidnapping is a legal term that does not apply to a case of a person placed into custody by federal law enforcement. Even when an arrest is deemed legally invalid or improper, it is not treated as a kidnapping. That is why there is no case that I know of finding that ICE has engaged in the kidnappings referenced by Professor Klarman.

The reference to “concentration camps” was made in a debate with other references to the Holocaust and the Nazi regime. Large holding areas have been used for decades in immigration operations under both Democratic and Republican presidents. They are not “concentration camps” as the term is commonly understood or used.

4. “Trump says quote ‘slavery was not that bad.'”

This appears to be a claim that was circulating on the Internet and was debunked as untrue. There is no such quote that I could find. On August 19, 2025, Trump criticized Smithsonian museums for focusing on negative aspects of U.S. history to the exclusion of more positive elements. He noted that there was “too much” on slavery. Trump wrote the Smithsonian is “OUT OF CONTROL, where everything discussed is how horrible our Country is, how bad Slavery was, and how unaccomplished the downtrodden have been.” He went on to add that there is “Nothing about Success, nothing about Brightness, nothing about the Future.” One can certainly object to the comment about the relative importance of slavery and why it should be mentioned prominently in these displays. However, the quoted statement by Professor Klarman appears to be apocryphal.

5. “James Madison designed this whole thing without thinking about political parties… he was not thinking [of one party controlling the White House and Congress]”

As someone who frequently writes about Madison, I was surprised by this statement and wanted to present an opposing view. It is certainly true that some figures like George Washington opposed the establishment of political parties. However, Madison actually started one of the first such political parties in the early 1790s around the time that the Constitution was ratified. It was the Democratic-Republican Party created with Thomas Jefferson. The Federalist Party was formally established in 1789 by Alexander Hamilton and other prominent figures. When the Constitution was drafted and ratified, the country was deeply divided along partisan lines. Madison would have had to be naive or moronic to ignore the partisan alliances around him. He was neither naive nor moronic.

I think it was very clear that Madison “was thinking” about political parties when he laid the foundation for the Constitution. While Madison wrote about “factions” rather than “parties” in his famed Federalist Paper writings, he viewed such alliances as natural and inevitable. In a speech to the Constitutional Convention, Madison declared that “no free country has ever been without parties, which are a natural offspring of freedom.” By the time of the Constitutional Convention, the country was already divided along Federalist and Jeffersonian lines. Indeed, he said, in a latter letter to Henry Lee, that “The Constitution itself … must be an unfailing source of party distinctions.”

Clearly, Professor Klarman and I hold opposing views on a myriad of issues. The program at Colgate is an important effort to create greater dialogue and diversity on our campuses. (I will be participating in another debate at the Virginia Military Institute on the same question on Sept. 30).

In fairness to Professor Klarman, these remarks should be considered in their proper context. Below is a link to the debate.

The Klarman-Turley Debate