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
France’s Reign of Terror was the result of mob rule. Passions inflamed, and any legal system that protected individual rights collapsed. By popular consent, mobs marched the wealthy to the guillotine, and killed men, women, and children for their crimes of having money. They executed children. They then ushered in a tyrannical and ultimately unstable government. Depending on which government was in power at the moment, you either persecuted or were persecuted.
Do you think that would never happen in the US today? Peter Fonda Tweeted that 11-year-old Baron Trump should be thrown into a cage with pedophiles. All it took for teenagers to trigger death threats, sexual assault threats, and a bounty on their heads by politicians, activists, and actresses, was to wear a MAGA hat while being threatened by the Black Israelites. Children who apply grammatically correct pronouns to fellow classmates, and refuse to apply the plural pronoun “they” to a girl, are harassed, kicked out of school, or face the threat of criminal charges.
Mob Rule is ugly and savage, and always results in the violation of human rights. Fighting it requires the Constitution.
The constitution was designed to protect against mob rule. What those advocating for the dismantling of the Constitution don’t realize is that the consequences of that lead to a worse power elite, where no one opposed to it is safe from persecution. This was not only the case in the French Revolution but the of the Russian Revolution as well. Those events both led to dictatorships. The extraordinary meeting of the minds that produced our Constitution knew this and wrote in safeguards that are relevant in any age. We now live in a culture in decline. The fundamental values promoting the cohesion of the social compact are being rent asunder. As Churchill once said, “Those that fail to learn from history are bound to repeat it,” Sadly, history, as taught these days has been relegated to the revisionist junk yard and is no longer of any value.
Do they really not realize that dismantling the Constitution would lead to a worse power elite, or do they hope to be part of that elite? One wonders.
“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.””
It is irresponsible for journalists and pundits to voice opinions in public or call for the scuttling of the foundational document of our government, without bothering to learn the facts.
According to the FBI, most violence against blacks is perpetrated by blacks. The idea that blacks are “hunted” by white gun owners is patently and demonstrably false.
Likewise, the idea that police officers are all racists targeting black people is demonstrably false. A black unarmed suspect is less likely to be shot than a white unarmed suspect, even though black arrestees are statistically more likely to resist arrest with violence. Many of the most prominent news stories about police use of force involved black or Latino police officers, which also undermines the narrative that white cops are some sort of arm of the Klan.
Be thinking men and women, not sheep. Stop dutifully baaing against selected targets when political activists tell you misinformation.
We are reaping what was sown with the addition of the 16th and 17th amendments to Constitution. we need to repeal both amendments.
Yes. Agree.
The Senate was to be populated by the political branch of State Government. To assure the Senate looked after the State interests, against the power of the federal govt. The People House, is used to refer to the House of Representative. Populated by the people through local elections.
The founders constantly created internal opposing interests as a way to keep the govt in check.
I believe it was Benjamin Franklin who said that pure democracy is 2 wolves and a lamb voting on what’s for dinner.
Or…it’s 1 poor, 2 middle class, and 1 wealthy person voting on how to divide up the rich person’s assets.
The Constitution protects individual rights. The Left requires a strong government at the expense of individual rights, “for their own good”, as long as they are in power and get to define “good.” Of course hard Left activists oppose the Constitution, and see the Supreme Court as a threat. How you, as individuals across America, respond is what will determine the future of America.
Bear in mind that those who are advocating the replacement of the Constitution are ALL, without exception, MARXISTS, and Marxism has been alive in this country since Abraham Lincoln, who threw the Constitution away during his term in office and ignored rulings from the Supreme Court. Marxism invaded our schools of higher “learning” in the late 1800s and became more powerful in the 30s. This is more than just Democrats, who are Marxist and Republicans, some of whom are Marxist but attempt to hide it. As for DC, the capitol should be moved to somewhere in the middle of the country and it would be returned to Maryland and Virginia.
Breaking the country into two, constitutionalists (C) and non constitutionalists (NC) would probably lead back to a single country. The C’s would esily take over the week socialist NC’s after a certin time passed. C’s would be hard working, developing and advancing while the NC’s would be worried what the 42nd gender should be called while waiting for their govt. to pay for their life choices.
Need prrof? this is what they spend their time on.
“The Entomological Society of America has adopted “spongy moth” as the new common name for the species Lymantria dispar. The name refers to the insect’s distinctive sponge-like egg masses and is derived from translations of common names used for the insect in its native range and French-speaking Canada.
The name replaces “gypsy moth,” which the Entomological Society of America removed from its list of common names in July 2021 due to “gypsy” being a widely acknowledged ethnic slur and the dehumanizing effects of the common name.”
I wish this was a joke but it is not. It is part of the “Better Common Names Project”.
https://entsoc.org/publications/common-names/better-common-names-project
So I say, yeah, let’s have this divorce. Then we can extinguish the NC’s later.
It could very easily lead to an East/West Germany scenario. Does anyone honestly believe that those bent on domination will cease in their efforts to destroy the other simply because borders have shifted? We’ve had two world wars and countless incursions throughout history that would suggest otherwise. The mere existence of other ways of thinking is unacceptable to zealots. It is also true that our counties are so intertwined, it would never work without forced relocation. Worked out SO great for Pakistan. This is not a solution. Not at all. Killing one another isn’t, either. We are in an intractable potion at present.
So what’s the solution? The left is like a patient cancer. It keeps moving the cog to socialism one notch at a time. They don’t have to move quickly because they know once the cog moves forward, it will not be set back. Look at Obamacare or social security. Nanny statepolicy is always an easier sell than individualism and self responsibility. So are we to just watch this happen?
I’m reading “The Gulag Archipelago” by Aleksandr Solzhenitsyn. I suggest to everyone to read this. It is disheartening to read his reflection of his comrads and how the blame for what they went through was a result of themselves because they did nothing.
James,
“The mere existence of other ways of thinking is unacceptable to zealots.”
I would be perfectly happy with a national divorce, two differing societies, education systems, economics, etc. running in parallel that never meet.
But you are right. The fact we would exist outside of their thinking is an anathema to them.
due to “gypsy” being a widely acknowledged ethnic slur and the dehumanizing effects of the common name.”
Not even close to reality. 99.9% of the people have don’t any notion about gypsy’s. Migratory scammers, would be the opinion of the other .1%. Making theme no different then politicians (Liz Cheney), or roofers.
Jim22,
As part of the divorce, do I still have to feed them (NC’s)?
No, to me, that would be the first salvo of the C’s. If farmers stopped selling to the cities and truckers refused to deliver there, watching the caos develop and the self implosion of the elites would be something.
Jim22,
I do have to point out that about 1/4 of produce does come from CA.
However, watching the mega-drought grind on in the West and South West, future production is questionable. Then again, sustainability for that many people in those regions is also questionable. Every farmer I know whom is dependent on the CO River Basin is watching water levels closely. I have already been reading about food prices are expect to go even higher next year. This is the kind of thing that can force mass migration of hundreds of thousands if not millions of people and not by choice. No water, no life.
Own real estate in the West or South West, sell now.
In theory, I could plant OP crops for diversification of produce along with traditional crops and livestock. I feel a poly-culture rather than mono-culture paradigm may be the way of sustainability for farmers.
Additional note, CA is the biggest importer of energy from other states. The problem is, green energy are given tax breaks, subsides making them cheaper than coal, natural gas or even nuclear energy, forcing those plants to close. Wind and solar does not have the capacity or reliability to make up for the loss of those plants. Fact of the matter is we should expect higher energy prices and even rolling brown or blackouts for prolonged periods of time in the near future.
Upstate,
I lived in CA during the 90’s. I left in 04. I could see the realestate crash coming. It didn’t take a genius though. I will say this about CA, where I lived they wre definitely C’s and not NC’s. Very concervative. The cities bring down the whole state.
“. . . condemnations of ‘constitutionalism’ as the root of our problems as a nation.”
Those nihilists are drunken, drive-by shooters. They seek to destroy any idea or value that speaks of Western civilization and America.
That is why they call this culture “*post*-Enlightenment,” and this era as “*post*-America.”
Does anyone have a leftist version of what their Constitution would look like?
Seriously, I would be interested in reading it.
“Does anyone have a leftist version of what their Constitution would look like?”
No. But it would start like this:
“The voice of the People is absolute. And we, the Philosopher Kings, are that Voice.”
Upstate, the left doesn’t know. The left can destroy but cannot build.
Let’s see…..there was this guy named George Santayana………
Republicans spend all there time trying to be good!
Democrats are fighting a CIVIL WAR!
Republicans need to go scorched earth!
I’ve observed a fundamental shift in the Democratic Party and those that support it in the 21st century. With very rare exceptions, many Democrats have been slowly brainwashed into hating everything that makes the United States what it is. This proposal by law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale and presented to the public by the New York Times and their nationwide distribution network is just another piece of evidence to support this observation. Anti-American totalitarianism control of the USA is right around the corner if it’s not already in control. What’s happening inside the Democratic Party is very cultish.
Remember Obama’s words calling “progressive” activists to action during his Presidential campaign in 2008, “Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”, well here we have it, those in the Democratic Party want to fundamentally change the USA and turn it into a totalitarian nation and they’re doing everything they can to implement their irrational changes. These totalitarians seem to believe in rights for me but not for thee. These people are anti status quo. So-called “progressives” and social justice warrior’s ideology, aka the Democratic Party, has shown us that they are an enemy to everything that makes the USA what it is, both their anti ideology and those that push it are an enemy of the people. Even moderate Liberals are succumbing to the social pressures exerted by the 21st century hive-mind and they’re predictably falling, one by one, into the ends justifies the means abyss – they’re sheeple!
With every day, week and month that passes the tactics of the hive-minded Democratic Party become more and more obvious as their totalitarian tentacles stretch deeper and deeper into the bureaucracies that actually run and control the United States and those tentacles are strangling their opposition out of leadership and replacing them with anti-American anti-constitution hive-minded individuals with the ends justifies the means as a core belief. Consider this; the constitution will be a toothless document when the hive-minded totalitarian Democratic Party cult has control of all the courts and all of the bureaucracies that control everything that happens in the USA. If this cult is allowed to gain more power over the population then real tyranny is just over the horizon.
It’s become crystal clear to me that the political left is out to destroy anything and everything that they consider the status quo all in the name of change, which seems to be their Holy doctrine. The progressivism that the left tout’s is literally anti status quo in the 21st century, if something exists as a current “status quo” then it’s anti-progressive and evil and therefore must be destroyed. Progressives consider their Holy doctrine of ideological changes to be an improvement to society and culture and anyone that opposes their Holy doctrine is obviously evil and must be destroyed.
Here is the current progressive Democrat’s four tenants of “truth”…
1. The Democrats are right.
2. Everyone else is wrong.
3. Wrong is evil.
4. Evil must to be destroyed.
…that’s the dead end of the 21st century progressive Democrat’s ability to think critically.
Propaganda narratives rule for totalitarians and blind adherence to parroting the narrative is expected by all. Any opposition to the the Democrat’s totalitarian hive-mind, their Holy doctrine and their propaganda narratives is treated as an act against democracy and the offender should be sacrificed upon their Holy alter of “social justice”, this is then used to justify outright persecution of the opposition. This is very cultish.
Rats; that’s “four tenets of ‘truth’ “ not “four tenants of ‘truth’ “. Gotta stop copying and pasting that misspelling “typo”.
So the supposedly progressive people proposing we abandon the Constitution believe that 51% of the people should get their way 100% of the time. How is that more fair than the system we have now?
Wouldn’t such a system dramatically suppress diversity of thought – and with that innovation and progress? (Since those things necessarily start out being ideas coming from a minority) In my conservative view, not only do they want “Tyranny of the majority”, what they are proposing would make our country less “progressive”!
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.
Frightening to think where this is all headed. As friends and colleagues in Europe keep asking, what is wrong with America these days? I believe it’s beyond that. What’s wrong with mankind that we now live in a constant state of anger and enmity?
” … what is wrong with America these days?”
**************************
Nothing wrong with “Americans.” A lot wrong with Democrats. Note the distinction.
Exactly!!
My personal opinion, which ony matters to me, is; There’s the door, don’t let it hit you on the way out, there are PLENTY of half-baked, quasi-socialist/tyrannies out there from which you may chose a new homeland if you are so disatisfied with this one. Stop complaining and leave.
I’ve said it before and I’ll say it again, the totalitarian wing of the political left (social justice warriors, “progressives” and illiberals) hate the United States of America.
The modern day totalitarian hive-mind hates the United States of America, yes they literally hate (feel intense or passionate dislike for) the USA. They hate that the 1st Amendment applies to everyone, they hate ethical journalism, they hate the concept of innocent until proven guilty, they hate the justice system and anyone or anything that supports it, they hate civility, they hate the police, they hate anyone that opposes their ideology, they hate a Constitution that dares to allow others to oppose their ideology, they hate that our basic freedoms allow some people to make more money than others, they hate that their opposition has any rights, they hate the fact that equal opportunity doesn’t equate to equal outcomes, they hate our system of education, they hate that all our history (both good and bad) make us what we are today, they hate, Hate, HATE. Their hate is a malignant cancer to our society, our way of life i.e. our culture, and our country.
You can read more of my opinion on this particular topic at Episode VII: Absurdity In The 21st Century Has Somehow Become “Normal”? e.g. Unwarranted & Unproductive Hate Of The Status Quo
It is funny to see the quote: “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.” Leftists are just now loudly and violently complaining that the abortion issue has just been returned to state legislatures! Democrats and leftists are the real enemies of democracy. When plebiscites repeatedly voted down proposals to approve gay marriage, the Demos ran to the courts to obtain a Constitutional edict in favor of same-sex marriage. In the 1950s, they successfully persuaded the Supreme Court to ban the “separate, but equal” practices in the South. In the 1960s, they persuaded the SC to prevent local communities from censoring popular entertainment. In the 1970s, they persuaded the SC to ban state anti-abortion laws. Since then, they have unsuccessfully lobbied the SC to ban capital punishment. There are many other cases where leftists have attempted to use “the Constitution” as a cudgel to beat down the exercise of democracy at the state and local level. Too much democracy, it seems, is a very bad thing.
These so-called “professors” do not understand that the U.S. Constitution is the document that protects our basic liberties from mob rule, which is what they are advocating for. They and other liberals who advocate for the abandonment of that critical protection of our fundamental rights would have loved the French Revolution. It is hard to believe that people who do not even understand the American system of government are being allowed to teach in our law schools.
Yes, they do, they just want to get it out of the way because they want to dictate, not legislate.
Well, Mr. Merrick, who are the insurrectionists now?