Academia, Constitutional Law

“American Democracy Doesn’t Survive”: Brown Professor Warns of the “Dangers of the Constitution”
We have been discussing a slew of books and interviews by academics denouncing the Constitution or individual rights as a threat to democracy. The latest is Brown University Political Science Professor Corey Brettschneider who is warning about the “dangers of the Constitution.”

It is all part of a counter-constitutional movement challenging the very documents that have protected freedoms for centuries. It is hardly a perfect record, but it has served the country and its citizens well.
 Brettschneider explained to the Brown Daily Herald that the constitution is not only a danger to us all, but “the traditional checks and balances don’t work, and that impeachment and the Supreme Court have failed to check rogue presidents.”He warned that “it could be that we’re at the moment where American democracy doesn’t survive.”The reason appears in large part Trump. Like many, Brettschneider brushes over the fact that the system has worked as designed, including after the Jan. 6th riot.Notably, I agree with aspects of the book in highlighting the courageous struggle of dissenters in our history and the criticism of figures like John Adams, who is also criticized in my new book, “The Indispensable Right: Free Speech in an Age of Rage.”

Moreover, he is correct that abusive presidents have avoided impeachment and the Court has historically failed to protect individual rights. We both criticize those failures, particularly by the Court. Ultimately, however, the Court did embrace more robust views of individual rights and has repeatedly blocked the overreach of presidents.

Brettschneider describes what he calls “constitutional constituencies” in their struggle against such abuses.

“These constitutional constituencies, the citizens readers of the Constitution who played a critical role in defending and furthering our democracy, therefore disrupt a standard story told by constitutional law scholars and political scientists – experts who declare that checks on the president come mainly from Congress or the Supreme Court, or locate the foundation of our democracy with the writers of the Constitution in 1787.”

He adds “If history is any guide, today’s crisis makes this a time ripe for constitutional recovery. In that sense, this book offers hope for current citizens seeking to restore democracy.”

While the book is about historical abuses by presidents and the struggle against them, the book’s pitch pushes all of the anxiety buttons: “Imagine an American president who imprisoned critics, promoted white supremacy, and sought to undermine the law to commit crimes without consequence.”  (The book addresses five prior presidents and the pitch does not make direct reference to Trump).

I have no objection to those who speak out against Trump or his conduct. That is part of a worthy national debate in this election year. However, more professors and pundits are suggesting that it is not just Trump but our Constitution that is threatening our democracy. While others have called the Constitution “trash” in their books, Brettschneider is a bit more circumspect in his interview and reportedly calls the Constitution a “dangerous document.”

The remarks of Professor Brettschneider is part of a growing library of books and interviews attacking the Constitution. As discussed earlier, law professors have led this effort. For example, in a New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism.”

Other professors have called for amending the First Amendment and have attacked free speech as a danger.

The United States Constitution is the oldest and most successful Constitution in history. It has survived crises that have destroyed other nations. Yet, we are a people who have not experienced true tyranny.  We can lose our appreciation for how fortunate we are to have this system and the stability that it has afforded this country.

In challenging constitutional values like the system of checks and balances, these academics are seeking to strip away the very elements that have forced compromise and moderation throughout our history. It is the very genius of James Madison that allowed the most pluralistic nation on Earth to govern as one.

The post-constitutional world that some professors describe is no doubt attractive to many. It promises more immediate gains from raw political power. However, it would endanger all rights by reducing the guardrails that have served us so well for centuries.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

295 thoughts on ““American Democracy Doesn’t Survive”: Brown Professor Warns of the “Dangers of the Constitution””

  1. I am reading “1917” by Arthur Herman and he describes how 2 key, but misdirected individuals, (Wilson and Lenin) created the ideologically driven world that we now have. It is a battle of ideologies and the lesser informed (the majority) will always choose the ideology bringing free stuff, rather than freedom, that will control the globe – a ‘worker’s proletariat of sorts but NOT controlled by the workers but by their unseen masters. The reason that our original constitution worked was because it was a government of individual, educated, morally grounded men who wanted no fetters on their individual freedoms. Mass immigration of the dross of the world has turned us in to the same mixture of dispossessed and fragmented workers who destroyed the government in Russia just to recreate a more onerous system of lies and control. I shudder to see what another progressive/communist-controlled white house can do to finish off this last vestige of free peoples.

    2. Whoa, whimsicalmama. I second Lin’s comment. Ideological divides made greater by identity politics have doomed us. And so how do we now prepare for the inevitable? In 1933, Papen and Hindenburg thought by appointing Hitler chancellor they could better control him. How’d that turn out? Then again, they may want exactly what she will bring, albeit they will not be able to control her like they think. Not at all comparing KH to AH, but just saying that the Dem elite may have created a Frankenstein. Bernie Sanders spoke the truth the other day when he said she hasn’t changed her positions, she just is speaking moderately to get elected. And the masses fall for this. In June, she was reviled. Now, she is the Second Coming. Best hope is the GOP flips the Senate. If not, the inevitable will come sooner rather than later.

      1. “Now, she is the Second Coming”. The prog/left had no choice but to create that illusion – they literally had no one else on their bench so the illusion was created in much the same way that taylor swift has been identified as a “singer”. There doesn’t need to be any there there as long as enough voters/fans buy into the delusion. And that delusion is meant to lead those ignorant tools to the voting booth/ticket booth. We made this societal mess when we created the welfare state and now it will take great pains on all sides to undo it. And undo it we must or perish as the last democracy on this globe. The internationalists know that they cannot control the globe as long as a freedom-supporting hegemon still has the power to command the globe – hence, why the progressives are eager to destroy us from within.

  2. Future historians are going to look back at all this madness, calls for ending the Constitution, in various columns and books. Then note those who continued to support the Constitution namely the good professor and his book.
    The good professor is on the right side of history. Our leftist friends are not.

    1. Upstate, our Lefists friends need to (forcibly?) move to a totalitarian country of their choice to experience first hand what their future will look like if they insist on defecating on the Founders and their efforts to protect their Rights.

    2. “all this madness, calls for ending the Constitution,”

      Upstate, the Constitution must undoubtedly be slowly adjusted as the world changes, but the key word is gradual. Anarchy leaves a nation open to whoever is strong enough to wield power.

      We have a unique Constitution where the people grant specific powers to the government. Those abilities were corrupted and expanded. Communists and leftists can destroy but cannot build; however, all people, no matter their ideology, have ideas.

      My question to Mr. Brettschneider is, what do we replace it with? He might provide superficial ideas, but that is not enough. Before he destroys, he has to prove the value of his ideas, which I am sure he cannot do. Pbinca today said something I agree with. She frequently has thoughts I agree with but cannot get past the destructive part and provide solutions. Since I replied to her posting, I am hoping she has some today.

      The Constitution left much to the states, but the left has pushed the idea that it is not the people who should be in charge but the commissar and the government. They want a type of fascism.

      To correct problems, we need the government to get out of our lives. Under Trump, the issue of abortion was returned to the states where it always belonged. That reduced the federal government’s responsibilities and made the government more effective and efficient. We must do the same for the other things that belong to the states.

      1. S. Meyer,
        Great comment.
        The idea of big government or a all encompassing central government should frighten all.

    3. I like your optimism that there will be historians who are record history and not revise or invent it.

      2. Mary,
        LOL! I actually had that same thought just after I clicked the “Reply,” button!

    4. Many have been on the “wrong” side of history (Mao, Lenin, Castro etc.) but they sure as heck created and maintained chaos and suffering to this day. Being on the right side doesn’t mean you will succeed – just look at the state of our nation. I take little comfort of just stating that the left is wrong – steps must be taken to rid us of this infestation of wrong ideologies.

  3. Look for the invisible hand behind and above all these “professors.”
    Research which institution, that was at the same time a religious institution and a state, conspired for centuries to eliminate the United States of America’s Constitution.

  4. If these counter-constitionalist genuses are so smart, why have they not yet written a candidate document to replace the Constitution? They haven’t, most likely because they can’t.

  5. The Constitution was prescient in ways that astound. Yet, it doesn’t receive an “A”, because it couldn’t prevent the Civil War nor 100 years of Jim Crow defiance of its ratified 14th Amendment.

    It needs some repair desperately. Congress routinely shirks responsibility for resolving the big controversies — it is literally decades behind where it should be in lawmaking — passively ceding powers to the other 2 branches to do what the Constitution gave Congress. The problem is that it gave Congress powers, when it should have given Congress responsibilities. The system of checks and balances was conceived to tamp down the overly ambitious — it utterly failed to anticipate the evasive slacker.

    We need checks and balances on evasion of responsibility — with explicit response times called out, and consequences for failing to meet deadlines. All well-functioning organizations have these checks and balances.

    The US Constitution has done poorly in adapting governance to a borderless internet, and global-scale business entities. When you think about the 1/8th agrarian continent it was designed for, it’s not surprising how awkward it has become, filing to speak to modern realities.

    But its core idea, that the authority of government flows from the consent of the governed, is still paramount. It didn’t say “informed consent”, but all the founding documents imply that leaders occupy “offices of trust”. A major challenge of the present is to somehow bind candidates for office, and officeholders to unflinching candor. Many of them have turned to deceitful infowarfare waged to dupe the citizenry, and when confronted, hide behind the First Amendment — it naively failing to state a preference for authentic speech over that intending to mislead.

    1.  “The problem is that it gave Congress powers, when it should have given Congress responsibilities.”

      Pbinca, since we both agree Congress has shirked its responsibilities, I wonder if you wouldn’t want to expand on what you mean by “given Congress responsibilities.” What additional types of responsibilities do you suggest?

    2. pbinca is correct. The current version of the constitution could not have anticipated the technology that exists today. They did a remarkable job, though, given what they had. The internet needs regulation just like driving a car does. It should not be open to just anyone, but rather those who have demonstrated competence and responsibility. Congress should give direction to each state to promote legislation that permits one to engage in internet activity according to their needs and abilities. The kids should have it for school. The really young ones should not have it for porn. Everyone, like what is happening right now in this communication, should be supportive of generating the responsibility that comes with this indispensable right. That responsibility should also extend to the legislatures at both the state and federal level who claim to be busy. They are busy, just not with the business of the people but rather their own. This fact betrays their illiteracy and mendacity and those who tolerate that illiterate and mendacious behavior should also read the Federalist papers and understand that the legislature is a position of service, and not just to one’s self. So it is with the presidency. It is an office of service. I don’t think the failure is on the part of the text and supporting concepts of the constitution itself, but rather it is located in the existential factors that the constitution was supposed to address. We are going to be OK, even if Trump does win, which I truly hope he does not, but we have to come to terms with a calculus that limits and also directs our behavior that is set forth so clearly in the text of the constitution and the declaration and that is that along with the enumerated and unenumerated privileges comes the responsibility of educating the populace for future needs of the populace. We will not have a populace to nurture and feed if we relinquish responsibility to the executive and their apparent appetites for fascistic behavior.

      1. Are you nutz? Regulation of the internet is what the bad guys are trying to do right now in order to squash dissent. We need a federal law that makes censorship by a public employee a capital crime.

        Granted, the information superhighway has lots of strip malls, parking lots, urban blight, toxic polution, and junkyards along the way but that beats the hell out of government control. Don’t be weak.

      2. “The internet needs regulation just like driving a car does.”

        Bull Pucky! If the authors of the Constitution did not find it necessary to regulate a Free Press, and, indeed, saw the necessity of permanently guaranteeing its independence from government interference, what possible reason is there to imagine that if they had been prescient enough to anticipate the internet, which is the exact current analogy to that press, they would have taken a different view of the need to regulate that? As specious as your pathetic attempt to formulate an analogy between information dissemination and driving a car is, I challenge you to produce any evidence that the Constitution allowed the Federal government to regulate the equipment and conduct of horse riders and carriage drivers on 18th Century highways.

    3. “…nor 100 years of Jim Crow defiance of its ratified 14th Amendment.”
      Thanks for pointing that out. The Dems had practice in defying the Constitution and SCOTUS long before the student loan case was handed down.

  6. Like his personality or not, it is clear that Trump has become the orange-man Scapegoat for everything that an opposing political ideology finds wrong with America. -That ideology relied on the Constitution when trying to impeach and remove him. But when it failed, suddenly we have a movement to impeach the Constitution.

  7. “The Constitution Is Broken and Should Not Be Reclaimed”

    The constitution isn’t broken, the only thing I see broken are our institutions of education, corrupt government officials and a media who have turned party propagandist. The constitution are rules to preserve freedom for Americans. If this administration and the directors behind it have four more years those rules won’t exist.

  8. As I understand it, each state bar requires all attorneys to take an oath in which they swear to support/defend the Constitution of the United States. If any lawyers, especially prominent ones, and Law professors, instead publicly attacks the Constitution, shouldn’t they face a disbarrment investigation/proceeding for breaking their oath?

    1. Isn’t it ironic that it is the freedom of speech, enshrined in the Constitution, that allows these lawyers and law professors to violate their oath to support/defend the US Constitution.

    2. “each state bar requires all attorneys to take an oath in which they swear to support/defend the Constitution of the United States”

      In part, the business of a lawyer is to find a rationalization for a client not following the letter of the law (before or after the fact). Whys should it then come as a surprise that a large number of lawyers utilize that skill to rationalize compromising or outright disregarding their oaths?

  9. We don’t have to “imagine” an American president who attempts to imprison critics or commits crimes without consequence. We have Biden.

    2. Anyone who misinterprets and mischaracterizes what Trump actually said (termination of all rules, regulations, and articles, “even those found in the Constitution” (hint hint: “even those found in the Constitution” does not mean “terminate the Constitution”) is mentally dishonest and possibly mentally ill.
      It’s called Constitutional Amendment—proposed some 200+ times over the last 250 years.

  11. What did you expect, Turley? Academia is a dump. You know it. As long as you can put some fancy title in front of your name, you are allowed to spew any BS you wish, and MSM will not question.

    1. “you can put some fancy title in front of your name, you are allowed to spew any BS you wish, and MSM will not question”

      Only so long as what you spew is the popular fascistic drivel of the day. Utter anything else and that same MSM will be on an urgent campaign to disparage your opinion, and trample it, and you, into the dust. Nominal titles and qualifications are of no immunity value against that onslaught.

  12. “But always – do not forget this, Winston – always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face – for ever.”
    O’Brien—1984, George Orwell

  13. The profs are obviously deluded. They write stuff so off-the-wall that even their so-called colleagues mock. But that’s the job of a university prof – write provoking stuff. Get attention for it. Put it on his resume. And life goes on. A working class hero on campus.

  15. “The Constitution Is Broken and Should Not Be Reclaimed”

    The old Left viewed the Constitution as a “living document” (i.e., as infinitely malleable).

    The new, fascist Left is less patient: Just kill it.

    1. Quick quiz, who said he wanted to {terminate the constitution}? And restore him to the Presidency?

      1. FishWings, sometimes in your life, you probably say you want to die or wish you were dead. Does that mean you want someone to shoot you dead?

        You have Trump’s statement wrong because the context is missing, but even if it isn’t, we don’t take comments like “I wish I were dead” seriously unless there is more to them.

        Why are you here if you can’t understand what I am saying?

  16. I agree with him that this is the moment when Democracy doesn’t survive” Kamala Harris was just installed as a president candidate without ONE SINGLE VOTE!
    Democrats ARE PRO ILLEGALS voting.
    Democrats are fighting a Civil War, their 2nd…Republicans so far are funding Democrats

  17. But the left isn’t fighting a revolution against America at every level that factually they’re winning.
    With no rules.

  18. Democrats are fascists who wish total centralized power to destroy all opposition.
    At least the Nazis loved their country…Democrats truly HATE America…just ask them!

  19. Time to END Federal Aid and Loan backing for colleges
    Let Democrats fund their OWN Failures

  20. Anyone who allows for “the termination of all rules, regulations, and articles, even those found in the Constitution” deserves imprisonment.

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