Below is my column in the Wall Street Journal on the growing counter-constitutional movement in the United States. This assault on the Constitution is being led by law professors who have lost their faith in the defining principles and institutions of our Republic.
Here is the column:
Kamala Harris declared in Tuesday’s debate that a vote for her is a vote “to end the approach that is about attacking the foundations of our democracy ’cause you don’t like the outcome.” She was alluding to the 2021 Capitol riot, but she and her party are also attacking the foundations of our democracy: the Supreme Court and the freedom of speech.
Several candidates for the 2020 presidential nomination, including Ms. Harris, said they were open to the idea of packing the court by expanding the number of seats. Mr. Biden opposed the idea, but a week after he exited the 2024 presidential race, he announced a “bold plan” to “reform” the high court. It would pack the court via term limits and also impose a “binding code of conduct,” aimed at conservative justices.
Ms. Harris quickly endorsed the proposal in a statement, citing a “clear crisis of confidence” in the court owing to “decision after decision overturning long-standing precedent.” She might as well have added “because you don’t like the outcome.” Sen. Sheldon Whitehouse (D., R.I.) has already introduced ethics and term-limits legislation and said Ms. Harris’s campaign has told him “that your bills are precisely aligned with what we are talking about.”
The attacks on the court are part of a growing counterconstitutional movement that began in higher education and seems recently to have reached a critical mass in the media and politics. The past few months have seen an explosion of books and articles laying out a new vision of “democracy” unconstrained by constitutional limits on majority power.
Erwin Chemerinsky, dean of the UC Berkeley law school, is author of “No Democracy Lasts Forever: How the Constitution Threatens the United States,” published last month. In a 2021 Los Angeles Times op-ed, he described conservative justices as “partisan hacks.”
In the New York Times, book critic Jennifer Szalai scoffs at what she calls “Constitution worship.” She writes: “Americans have long assumed that the Constitution could save us; a growing chorus now wonders whether we need to be saved from it.” She frets that by limiting the power of the majority, the Constitution “can end up fostering the widespread cynicism that helps authoritarianism grow.”
In a 2022 New York Times op-ed, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for liberals to “reclaim America from constitutionalism.”
Others have railed against individual rights. In my new book on free speech, I discuss this movement against what many professors deride as “rights talk.” Barbara McQuade of the University of Michigan Law School has called free speech America’s “Achilles’ heel.”
In another Times op-ed, “The First Amendment Is Out of Control,” Columbia law professor Tim Wu, a former Biden White House aide, asserts that free speech “now mostly protects corporate interests” and threatens “essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.”
George Washington University Law’s Mary Ann Franks complains that the First Amendment (and also the Second) is too “aggressively individualistic” and endangers “domestic tranquility” and “general welfare.”
Mainstream Democrats are listening to radical voices. “How much does the current structure benefit us?” Rep. Alexandria Ocasio-Cortez (D., N.Y.) said in 2021, explaining her support for a court-packing bill. “I don’t think it does.” Kelley Robinson, president of the Human Rights Campaign, said at the Democratic National Committee’s “LGBTQ+ Kickoff” that “we’ve got to reimagine” democracy “in a way that is more revolutionary than . . . that little piece of paper.” Both AOC and Ms. Robinson later spoke to the convention itself.
The Nation’s Elie Mystal calls the Constitution “trash” and urges the abolition of the U.S. Senate. Rosa Brooks of Georgetown Law School complains that Americans are “slaves” to the Constitution.
Without countermajoritarian protections and institutions, politics would be reduced to raw power. That’s what some have in mind. In an October 2020 interview, Harvard law professor Michael Klarman laid out a plan for Democrats should they win the White House and both congressional chambers. They would enact “democracy-entrenching legislation,” which would ensure that “the Republican Party will never win another election” unless it moved to the left. The problem: “The Supreme Court could strike down everything I just described, and that’s something the Democrats need to fix.”
Trashing the Constitution gives professors and pundits a license to violate norms. The Washington Monthly reports that at a Georgetown conference, Prof. Josh Chafetz suggested that Congress retaliate against conservative justices by refusing to fund law clerks or “cutting off the Supreme Court’s air conditioning budget.” When the audience laughed, Harvard’s Mr. Doerfler snapped back: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.”
The cry for radical constitutional change is shortsighted. The constitutional system was designed for bad times, not only good times. It seeks to protect individual rights, minority factions and smaller states from the tyranny of the majority. The result is a system that forces compromise. It doesn’t protect us from political divisions any more than good medical care protects us from cancer. Rather it allows the body politic to survive political afflictions by pushing factions toward negotiation and moderation.
When Benjamin Franklin said the framers had created “a republic, if you can keep it,” he meant that we needed to keep faith in the Constitution. Law professors mistook their own crisis of faith for a constitutional crisis. They have become a sort of priesthood of atheists, keeping their frocks while doffing their faith. The true danger to the American democratic system lies with politicians who would follow their lead and destroy our institutions in pursuit of political advantage.
Mr. Turley a law professor at George Washington University and author of “The Indispensable Right: Free Speech in an Age of Rage”
“Kamala Harris declared in Tuesday’s debate that a vote for her is a vote “to end the approach that is about attacking the foundations of our democracy ’cause you don’t like the outcome.” …”
Witness the Attack on the foundations of our democracy ’cause you don’t like the outcome.” by the Democrats deliberately deviating State Laws into ‘Winner take-all Electoral College Delegates” so that that can manipulate the outcome of the National Election.
This is the ‘silent’ attack upon the American Democracy. It’s real and it’s happening Now.
Harris – Is a Hypocrite and a Fraud
Don’t Vote for Puppets!
Benjamin Franklin also travelled to France to ask the French for financial assistance so that the American colonists could fight the British. The Trump cult would have mocked him, just as they are doing to Zelensky.
While the Marxist cult defaces his statue.
GFY
what a stupid argument. Ukraine is a country. The American colonists were…colonists.
Huh? That made no sense.
Trump is a great salesman of steaks, watches, and athletic shoes. American principles? Not so much.
Not everyone can live up to the high standards of American principles that Hunter and Joe Biden have set. Obama is another shining example of American exceptionalism, he brought new meaning to the word principles, like Marxist principles. A little blow, a little weed…Larry Sinclair, a little action, a true leader.
Trump would know a thing or two about the assault on America’s defining principles. Ask him about it.
One of the best men I have ever known, a Colonel in the Army, a former marine, one of the first SF groups formed, a true patriotic American told me when I asked him about where we have been taken, “Do not worry because you will know what to do in your heart when the time arrives.”
Sound advice.
Jonathan: Turning to your column you assert: “The assault on on the constitution is being led by professors who have lost faith in the defining principles and institutions of our Republic”. The key word is “Republic”.
For decades the GOP and conservatives, like you, have claimed the US is not a “democracy” but a “republic”. Actually we are both. John Marshall, one of the Founders and probably the greatest Chief Justice, said this at the Virginia convention: “We, sir, idolize democracy. We prefer this system to any monarchy because we are convinced it has a greater tendency to serve our liberty and promote our happiness. We admire it because we think it a well-regulated democracy”.
James Madison, the one founder you admire the most, also used the terms interchangeably. James Wilson, who signed both the Declaration of Independence and the Constitution, said: “All authority of every kind is derived from representation of the people, from the people, and the democratic principles is carried into every part of the government”. So the Founders saw no distinction between a “republic” and “democracy”. Unfortunately, the Founders concept of “democracy” did not include women or slaves. The whole history of the country has been a fight to expand democratic rights to include women and Black people.
Today those on the right who claim we are a “republic”, not a “democracy”, believe that certain groups, white men in particular, were meant to rule–claiming that a “republic” is preferable to protect a dwindling population of white males. We see this in the 2024 presidential election. DJT and the MAGA GOP are engaged in efforts to prevent democratic rule. Since the 2020 election GOP majorities in many states are putting up obstacles to voting. From redrawing voting districts to dilute the Black and Democratic vote and preventing mail-in voting. In Georgia DJT’s supporters created a new Electoral Commission that voted to require a hand count of all votes–the whole purpose of which is to delay the vote count to permit DJT to challenge the vote if he loses. It’s all about preventing the democratic process of electing the next president.
Abortion will be a big issue this year. Missouri restored its abortion right after the Dobbs decision. Missouri voters were outraged and gathered signatures to put abortion on the ballot. The GOP in Missouri, composed mostly of white males, tried every which way to keep the referendum off the ballot. That nefarious effort failed when the MO SC recently ruled the abortion referendum will be on the ballot in November. In Nebraska the supporters of DJT tried to change how the votes are counted to favor him. That effort also failed. In many other ways DJT is trying to subvert the “democratic” process of how we select the next president.
It’s remarkable that in every state governors are chosen by popular vote. Neither Texas, California nor Pennsylvania has an electoral college. That’s why many scholars, including some you mention in your column, are calling for the abolition of the Electoral College–and for good reason. In 2000 Gore won the popular vote. Same for Clinton in 2016. Yet they lost the electoral college vote. In 2020 DJT tried to subvert the “democratic” process by attempting an insurrection and substituting his fake electors for those chosen by the voters.
But you claim “without countermajoritarian protections and institutions, politics would be reduced to raw power”. By that you mean you do not believe in majority rule, the “raw power” of the people to decide. That has been the mantra of conservatives for years–the belief that a dwindling minority of white males should decide all the big issues. That’s how you think a “republic” should work. That’s not my concept of “democracy” nor is it of the 13 scholars you cite in your column!
Dennis says to JT,
“But you claim “without countermajoritarian protections and institutions, politics would be reduced to raw power”. By that you mean you do not believe in majority rule, the “raw power” of the people to decide. That has been the mantra of conservatives for years–the belief that a dwindling minority of white males should decide all the big issues. That’s how you think a “republic” should work. That’s not my concept of “democracy” nor is it of the 13 scholars you cite in your column!”
That is the most unintelligible, contradictory, incoherent, self-negating, self-imploding, and false example I have seen coming from the mouth of Dennis in at least …two days.
Kamala’s nasal voice is SO irritating that it, alone, is disqualifying.
Then, the rest of this inept, incompetent, c*cks*cking, beeyatch, who failed the bar exam….is disqualifying.
Plus her utter contempt for voters, her brazen lying, her obvious stupidity, her joke of a campaign….etc….
ALL of it is DISQUALIFYING.
Dennis
You should never miss an opportunity to remain silent. How many times is Democracy mentioned in the Constitution?
I’m so sick of hearing about race. I know the second it’s brought up that nothing of value follows. Start treating people as individuals and not members of groups unless your purpose is to permanently divide the nation. If that’s the case the time for national divorce is long overdue.
As would I suppose, supporting a doddering old nincompoop who has issued more threats against the American people than Uncle Joe Stalin, including the destruction of the SCOTUS as we know it, turning it into a function of mob rule, after his party’s Senate Majority Leader publicly threatened the judges, and who selected a Veep that has stated she supports eliminating that old and obsolete mechanism of democratic process protection called the filibuster, so that she can complete the rigging of democracy to a one party rule all in the joyful mirage of “protecting” democracy.
https://www.businessinsider.com/manchin-harris-senate-filibuster-roe-v-wade-abortion-rights-2024-9?op=1
Wonderful resource. Thank you.