Below is my column on the increasing condemnations of “constitutionalism” as the root of our problems as a nation. The latest such attack came from two professors in the New York Times in a column titled The Constitution Is Broken and Should Not Be Reclaimed. It is part of a crisis of faith sweeping the nation. There are good-faith objections to such institutions as the electoral college, but the growing attacks on the Constitution reflects a more significant break with our constitutional values and traditions.
Here is the column:
It appears that we may finally to be coming out of the campaign on the left to “pack the court” with a liberal majority. That is good news. The problem is that many on the left have turned their ire on the Constitution itself as the root of all evil in our country. In a New York Times essay, law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are calling for the Constitution to be “radically altered” to “reclaim America from Constitutionalism.” In order to accomplish this dubious objective, they call for shifting from the “Pack the Court” to “Pack the States.” The attack on “constitutionalism” is chilling but these professors are not the first to lash out at our Constitution as the scourge of social justice.
The New York Times column called for citizens to view the Constitution as the real enemy and to push to “radically alter the basic rules of the game.” The attack on our Constitution has become something of an article of faith for the far left in recent years.
Recently, Georgetown University Law School Professor Rosa Brooks drew accolades for her appearance on MSNBC’s “The ReidOut” after declaring that Americans are “slaves” to the U.S. Constitution and that the Constitution itself is now the problem for the country.
CBS recently featured Boston University Professor Ibram X. Kendi, who proclaimed that the Second Amendment was little more than “the right to enslave.”
MSNBC commentator and the Nation’s Justice Correspondent Elie Mystal has called the U.S. Constitution “trash” and argued that we should ideally just dump it. Mystal, who also writes for Above the Law, previously stated that white, non-college-educated voters supported Republicans because they care about “using their guns on Black people and getting away with it.”
Doerfler and Moyn make the same case with a twist in seeking to pack the states. They insist that “The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.” Rather than recognize that this document has produced the longest standing and most stable democratic system in history, professors denounced it as a “some centuries-old text” because it stands as a barrier to their social and political agenda. The problem, they suggest, is that many liberals still believe in constitutionalism as opposed to raw majority power.
Some are calling for “popular democracy” as an alternative approach to governance. The term is often associated with “direct democracy” where citizens have unfiltered and direct say in government decisions. It was the model expressly rejected by the Framers in favor of our system of representative democracy.
In Federalist 10, Madison wrote:
“Pure democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”
Instead, he created a system by which public passions could be filtered or expressed through a smaller group of representatives, to temper and refine popular impulse.
In addition to our system of representative democracy, we have institutions designed to resist popular impulse or demands. The United States Supreme Court is the principal example in using elements like life tenure to stand against majoritarian demands and what Madison called “the tyranny of the majority.”
That system has served us well. It was the countermajoritarian role that allowed the Court to strike down bans on interracial marriage, decriminalize homosexuality, and protect the rights of the accused.
However, the constitutional process strives for consensus and compromise, key elements in the success and stability of our system through decades of political and social upheaval. Yet, these professors complain that the left has “agonizingly little to show for it” and should now “radically alter the basic rules of the game.” After all, they noted, “It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.” That is certainly correct. Without constitutionalism, everything then becomes a majoritarian muscle way with little need to compromise or even to consider the views of the minority.
The solution, therefore, is not to “pack the court” but “to pack the Union with new states” to change the Constitution and “reinvent” society.
They are at least open and honest about their motivations and means. The essay confirms the view of critics that the push of Democrats to create new states in Puerto Rico and D.C. are meant to secure an insurmountable majority in the push for radical changes.
It is similar to the remarks of Harvard professor Michael Klarman two years ago for court packing and insisted that Democrats can change the system to guarantee Republicans “will never win another election,” at least not without abandoning their values. However, Klarman warned “the Supreme Court could strike down everything I just described” so the court must be packed in advance to allow these changes to occur.
Democratic leaders have echoed these sentiments by calling for court packing and questioning core institutions. Sen. Elizabeth Warren, D-Mass, has declared the Supreme Court illegitimate and has called to pack the Court for rending opinions against “widely held public opinion.”
Rep. Alexandria Ocasio-Cortez, D-N.Y., even questioned the institution’s value: “How much does the current structure benefit us? And I don’t think it does.”
The attack on “constitutionalism” says all that one needs to know about this campaign. The Constitution has long been the very thing that defined us. It is a shared covenant of faith, not with the government but with each other. Untethered from such constitutional rules, these professors seek to be freed from constitutional restraints in pursuing radical changes. It is so liberating that these professors can write that Congress should “openly defy” the Constitution to “get a more democratic order.” Such Orwellian doublespeak does not little to shield the true purpose of this campaign to accumulate powers, which Madison declared “justly be pronounced the very definition of tyranny.”
For those trying to stay ahead of the mob, we are now moving beyond the Constitution. Now we must “pack the states” to liberate ourselves from that pesky Constitution. After that, our “reinvention” can begin. Ironically, however, we will be reinventing ourselves into the type of system that the Framers rejected roughly 250 years ago.
This column previously appeared in Fox.com
They’d better be careful what they wish for. Their assumption is that Democrats will always be in the majority. This would be an error on their part. Independents determine elections, and we’ve seen that they’re capable of voting for both Obama and Trump. At the very least, Independents don’t lean as far left as the idiots calling for trashing the Constitution. And if it ever does come down to “raw power” (aka: civil war), just remember who has been defending the 2nd amendment and who has been attacking it, and then think about which side will be better prepared.
My thoughts exactly.
let us know when the Republicans start fighting the Civil War Democrats ARE ALREADY FIGHTING?
@hullbobby
“Let’s see how votes go for defunding the police and for ending cash bail.”
I feel absolutely no sympathy for s@@libs when their precious pets end up biting them.
You know the type – ‘BLM’ or ‘hate has no home here’ signs in their yards in an upper middle class neighborhood; their kids go to an exclusive school and in their mating and migratory habits they are no different than the KKK.
I fully and truly despise those phony, virtue signaling people.
antonio
I would suggest an alternate view. Maine, New Hampshire, Vermont, Connecticut, Rhode Island, and Delaware all together have 12 senators. Yet their populations combined are less than that of either Georgia or North Carolina. What we need to to do is reduce the influence of the Northeast in the Senate where it has outsize influence. Combine Delaware with Maryland (since it is just a city with extended suburbs), Give most of the city of DC back to Maryland like the DC area of Virginia was given back to Virginia. Put Maine, Vermont and New Hampshire in one state and Connecticut and Rhode Island into one state. I really don’t care then what they do with Puerto Rico.
Progressives have hated the constitution since Woodrow Wilson, and FDR was also an acolyte of Wilson.
Progressive’s seem to have a willful ignorance of the actions or government and it’s tendency to grow in power at the expense of it’s citizens. They truly have no concept of the tyranny of the majority or just don’t care about it in their quest for power. They were spoiled by activist liberal supreme courts and now have have been brought to earth and don’t like it.
They must be opposed at every turn. I’ll leave it at that. I would also suggest multiple course in history not taught in the bubble of the northeast.
Well, General Milley, who are the insurrectionists now? Pure democracy starts with a majority of votes and ends with a majority of guns. Get ready for a military junta–for our own good of course (sarcasm for you folks in Rio Linda).
Professor Turley,
Although I wholly disagree with the NYT article, their proposal to “pack the States” appears to use the current amendment process of the Constitution to make changes.
From the article: “One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.”
Despite the authors’ radical rhetoric, this appears to be a call to use the Constitution’s process for modification to … make modifications. Unless you think constitutional amendments are the enemy of “Constitutionalism”, it is disingenuous to call it an “attack” on the Constitution.
Are constitutional amendments “attacks” on the Constitution? Frankly, I think a SCOTUS rejection of such a constitutional amendment would be a much greater attack. Of course, all of this is conjecture and will never happen anyway.
This is a curious comment, but a thoughtful one. I have some observations:
You wrote, “Their proposal to ‘pack the States’ appears to use the current amendment process of the Constitution to make changes.”
I’ll concede that if the Democrats kill the filibuster, they can make even Middle Earth a state, but I doubt Middle Earth would want to be associated with any fruitcake factory like Washington D.C.
You wrote, “Unless you think constitutional amendments are the enemy of ‘Constitutionalism,’ it is disingenuous to call it an ‘attack’ on the Constitution.”
I believe Professor Turley’s arguments are more nuanced than that, and I don’t recall him attacking the amendment process. It’s not the means but the ends he fears. Amendments, if they can actually get approved, can fundamentally alter the governing principles of the Constitution. Professor Turley is simply defending several of those governing principles.
You wrote, “Frankly, I think a SCOTUS rejection of such a constitutional amendment would be a much greater attack. Of course, all of this is conjecture and will never happen anyway.”
I agree on this much, it’s unlikely. The 2/3 rule for passing amendments makes judicial review of amendments moot. I’ll admit, it’s an interesting question but purely speculative, and you’re painting SCOTUS as a boogeyman for challenging amendments that would never get 2/3 approval. I could just as well say that SCOTUS is unfair because it wouldn’t tolerate an amendment making Professor Turley dictator-for-life.
You wrote, “Although I wholly disagree with the NYT article…”
This is the most curious comment of all. You repudiate the article in its entirety? Sounds like you’re also rejecting Professor Turley’s. I can’t help but wonder where you stand.
Note that adding four Senators and a handful of Congresspersons would hardly overcome the 2/3 rule of amendments. If the NYT lunatics don’t understand that basic math, they don’t understand much. If they are instead just making an argument for adding states, it’s still stupid because bringing in a discussion of passing a whole raft of radical amendments will only attract more resistance, not less. The biggest headwind for the ERA was certainly not equality for women, but all the other nutty things radical feminists were demanding at the time.
It’s an enemy within, supported by enemies abroad … looking to unravel the United States, thread by thread – a country and the concept of a government by the people, for the people that they could not defeat on the battlefield of ideas or weapons. Concepts like life, liberty, and the pursuit of happiness; equal justice under the law; all citizens created equal; equality of opportunity … is not the point.
The first amendment is their enemy.
At a glacier’s pace, our overall success since world war 2, led to conditions that allowed this fungus, this cancer to grow. Corrupt, lazy, incompetent elected leadership, derelict in their duty and pledge to protect the constitution, allowed the growth of an unaccountable government complex installed to do their jobs for them while they pose for the TV and collect stock options and speaker fees.
We allowed our schools to introduce critical theories and concepts without the requisite counter arguments that are required for a well rounded education. A well rounded education was never the point either …
Maybe, finally, the glacier, the cancer is getting too large to ignore. One by one, Titanic sized ships are going down, some parents are waking up … children are realizing that maybe their teachers, heroes, parents are wearing no clothes …. we have to count on our children to save us … again.
Ah, two more highly credentialed experts who know something about the law and absolutely nothing about history or human nature.
It is a common ailment, but not one that afflicted Jefferson, Madison, & cpy., who were well versed in history, and who had a realistic view of human nature as flawed and in need of checks and balances rather than inducements to license.
When I was young, I thought those who praised the Founding Fathers somewhat quaint. Now that I am old, I realize what a gift they bequethed the country — a foundational law that prevented majorities from running roughshod over minorities, which all of us are, have been, or will be at some point.
As for these two law professors, I recommend they examine how Hitler came to power and then consolidated his hold on power, a glimpse at the fall of the Roman Republic, and something on the arrogance of Athens that led to its humiliation.
For what it’s worth, US foreign policy has for years defined a foreign state as democratic only if the election results conformed to US expectations.
These professors are fascists who would gladly turn America into a totalitarian regime. Much of the Academic elite such as these authors are admirers of the CCP. The professors see themselves as wise philosophers who would rule over the unwashed masses who they disdain and who do not deserve to self govern. These Professors have the humanity of a Stalin and are sheer evil. And yet they might prevail as this country disintegrates governed by malevolent incompetents overseeing a decadent and apathetic citizenry
A friend once pointed out to me that fifty percent of all doctors graduated in the bottom half of their class. Well, the same applies to lawyers. If you can’t do, teach, or write columns for the NYT and sound the fool.
The Framers were a lot smarter than the current crop of fools that have come out of law schools in the last who think they are very smart but have absolutely no common sense. It’s either that or they are playing to the crowd in order to “fit in” and be a hero.
I’m not sure where these elitist professors got their law degrees. Perhaps they should seek refunds. Professor Turley is, indeed, objective. His analyses are refreshing, especially in contrast to the collective voices of the mainstream media. I, for one, do not want to see our current system recalibrated to support the false narrative that the “progressive” elites are pushing. We need the checks and balances provided by the Constitution. The 250th Anniversary of the formation of our great nation is just four years away. What will our country look like in 2026? Wake Up America!
@hullbobby
It only counts as ‘democracy’ if the ‘correct’ result is obtained.
Democracy the God That Failed.
https://archive.org/details/HoppeDemocracyTheGodThatFailed
antonio
@justiceholmes
“Sadly Professor you are no longer an objective observer.”
I guess JT is a ‘nazi’ too. S@@tlibs love calling those who disagree with them slurs.
antonio
The solution, therefore, is not to “pack the court” but “to pack the Union with new states” to change the Constitution and “reinvent” society.
They are at least open and honest about their motivations and means. The essay confirms the view of critics that the push of Democrats to create new states in Puerto Rico and D.C. are meant to secure an insurmountable majority in the push for radical changes.
Yes, of course they are being honest, unlike most leftists.
If the founding fathers (not to mention Teddy Roosevelt, Columbus, western pioneers) were evil, the system they established was too. The removal of statues were never going to stop with ‘canceling’ the Confederates.
At this point, I DO NOT WANT TO UNDERSTAND, DIALOGUE OR RECONCILE with these people, I want a D-I-V-O-R-C-E.
And don’t worry, that divorce is coming. As a side note, when La Raza wants to establish ‘Aztlan’ in around 2050, you’ll be the first to support it since they are only remedying the ‘injustice’ of the Mexican War.
antonio
“There are good-faith objections to such institutions as the electoral college”
There’s no good objection’s to change or abandon our Constitution! We have at this point been the only nation who has prospered because of the US Constitution. Only the useful idiot’s as Brezmenov calls them have corrupted our Constitution and Americans better wake up.
The electoral college is a relic of the past that no longer serves the national interests. We should go back to one person one vote.
ATS, again you mix up your ideology with the law and common sense. You want slavery, 2 foxes and a hen deciding what they should eat for lunch.
“The electoral college is a relic of the past that no longer serves the . . . interests [of New York and California].”
There. Made it honest, for you.
Only if you live in one of the few major metropolis’. For the rest of us it’s a formula for Tyranny of the Majority and civil war.
The leftist radicals are so out of touch that they think that having “majoritarian” votes would be a good thing for their side. Ok libs, let’s vote on abortion and see if the majority of people are closer to strict restrictions or abortions at 9 months. Let’s see how people feel about the right to own guns. Let’s see how people feel about the death penalty. Let’s see how votes go for defunding the police and for ending cash bail.
Want to get rid of the electoral college? Well let’s see if Dems still win the popular vote when Republican candidates finally set foot in CA, NY, NJ, MA and IL to campaign for president. Your far left Dems won’t carry CA by as many millions of votes when our candidates actually try there.
Want to get rid of the filibuster (I know it is not in the Constitution)? Well let’s see how that works out for the party that used it hundreds of times in 2020.
Want to let the people vote on Trans issues?
Want to let the people vote on CRT in schools for kids in the first grade?
Want to let the people vote on college loan “forgiveness”?
Want to let the people vote on the border and immigration policy?
The liberals never give up and never give in and when they do lose they want to change the rules.
“Bolshevik” is the Russian word for majority. The Bolsheviks liked it for the very brief time that they had the majority. When they lost their majority, they used their power to be dictatorial. Worked for them for about 70 years.
“Well let’s see how that works out for the party that used it hundreds of times in 2020.”
you seem to forget that the Democrats weilded the filibuster like a sword when they were in the minority
The pillars of intellect have failed to offer a solution. I know these are professors, so their ignorance may not be correctable. They could start by trying to understand the Declaration of Independence. Pay particular attention to the list of grievances.
Make no mistake, Only persons siloed in academia can be this clueless. Sitting around the table, competing with each other to be the most uninformed.
Some of the more radical lefties are determined to breakup the country.
They are smart people who don’t understand the consequences of what they are asking for.
If they win, they will get what they want – good and hard.
The term “traitor” has been tossed around recently. Finally some who fit the bill.
Mystal, who also writes for Above the Law, previously stated that white, non-college-educated voters supported Republicans because they care about “using their guns on Black people and getting away with it.”
Is he just stupid. Or, is he stupid because he is Black? Or does he know is audience is stupid.
Simple arithmetic proves such a statement as false.
We all get to judge him for such lies.
Iowan2,
Actually, since the 2020 summer of love, minorities and women have made up nearly 40% of gun sales (mostly handguns) and are first time buyers.
I encourage all law abiding American citizens to exercise their 2ndA rights. And get formal training.
Iowan2: Mystal is a know-nothing “diversity” hire whose only function at MSNBC is to make outlandishly racist statements so that loser of a channel can keep the little rabid audience it has. No one takes him seriously, except the illiterate left. He and Joy Reid are tools, being used by rich white liberals to keep the adrenalin flowing on the left. It’s a shame that liberal black elites have prostituted themselves in such a humiliating way. Trading dignity for cash will bring regret some day.
Republican fanatics have already packed the States and the Court. Their goal is to disenfranchise as many as they can.
Sadly Professor you are no longer an objective observer.
How have Republicans packed the states, or the courts? They’ve not added numbers to either to alter their compositions, and that’s the standard political definition of packing.
Justice Holmes – ad hominem attack
It isn’t.
Anonymous – it is a ad hominem attack since he cannot back it up.
“Sadly Professor you are no longer an objective observer.“
Objective observers pay attention to the facts, those pesky little things that you seem to avoid.
RepublicanDemocrat fanatics have already packed the States and the Court. Their goal is to disenfranchise as many as they can.Once again, a Leftist attempts to gaslight the readers and gets pummeled by facts that prove it’s the Democratic party that is the enemy of the United States.
In a shocking report, the U.S. Census Bureau recently admitted that it overcounted the populations of eight states and undercounted the populations of six states in the 2020 census.
All but one of the states overcounted is a blue state, and all but one of the undercounted states is red.
Those costly errors will distort congressional representation and the Electoral College. It means that when the Census Bureau reapportioned the House of Representatives, Florida was cheated out of two additional seats it should have gotten; Texas missed out on another seat; Minnesota and Rhode Island each kept a representative they shouldn’t have; and Colorado was awarded a new member of the House it didn’t deserve.
These harmful errors also mean billions in federal funds will be misallocated. Funding for many federal programs is distributed to the states based on population. Overcounted states will now receive a larger share of federal funds than they are entitled to, at the expense of the undercounted states.
https://www.dailysignal.com/2022/08/18/census-errors-will-distort-elections-funding-for-next-decade/