One of my general rules of thumb for describing the asymmetry between the American right and left is that, on the right, crazy and dangerous ideas typically bubble up from the grassroots until they are resisted or pandered to by elites, but on the left, crazy and dangerous ideas typically come from the elites and are spread from there to the grassroots. (You could claim Donald Trump as an exception, but aside from his stolen-election campaign, Trump was more often a symptom of grassroots agitation than an elite originator of ideas).
Today’s example is an op-ed in the New York Times by Harvard law professor Ryan Doerfler and Yale law professor
Struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism. The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. . . . But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past. . . . It’s time for [liberals] to radically alter the basic rules of the game. . . .
Even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism. . . . Our current Constitution is inadequate. . . . Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? . . . It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. 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.
By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future. . . . The way to seek real freedom will be to use procedures consistent with popular rule. . . . Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears. [Emphasis added.]
Unsurprisingly, the methods proposed in order to overthrow the Constitution are also radical:
One way to get to this more democratic world is to pack the Union with new states. . . . More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “council of revision” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.
In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review…The basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by present electorate as opposed to one from some foggy past. A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way. [Emphasis added.]
This is an open call for the House of Representatives to seize power like some Third World junta; trash the Constitution; tear up all of the rules regarding the Senate, the president, and the courts that stand as obstacles to the will of Nancy Pelosi; and engage in “constant reinvention of our society” — ever the dream of the revolutionary. It is the sort of thing that one would expect to find in a pamphlet written by a crackpot, but because it aims at liberal-progressive policy ends, we find it instead co-authored by professors at the nation’s two leading law schools — instructors of future leaders of the bench and bar — and published in the nation’s most prominent newspaper.
No, thanks. Our Constitution gives us, as Ben Franklin, said, “a republic — if you can keep it.” I’d prefer to keep it.