For decades, from the advent of the liberal Warren Court in the mid-1950s, leftists counted on the Supreme Court as their principal agent of change. They relied on the increasingly, shall we say, creative interpretations of the commerce and general welfare clauses of the Constitution to justify almost any action deemed unconstitutional by their opponents. The left succeeded to a remarkable degree, convincing the high court of, among other things, a hidden constitutional right to abortion and gay marriage, the legitimacy of racial quotas, and a grand expansion of federal power in its many forms.
Leftists have long argued for – here it comes – a “living constitution.” Translated, that means essentially relaxing the standards for amending the law of the land anytime the winds of political change are blowing – or even when a new presidential administration takes power with beliefs antithetical to its predecessor. It’s like the old Groucho Marx line applied to the nation as a whole: “… those are my principles, and if you don’t like them … well, I have others.” Put simply, a living constitution is a dead constitution.
We can safely stipulate that while most leftists favor such a “living, breathing document,” not everyone on that side wants to get rid of it altogether despite the court’s present rightward tilt. But that might change now that the progressive bible of the left, otherwise known as The New York Times, has weighed in with a piece titled, “The Constitution Is Broken and Should Not Be Reclaimed.” In it, the co-authors, law professors Ryan D. Doerfler and Samuel Moyn – from Harvard and Yale respectively, of course – finally admit with words what the left has betrayed with its actions for as long as anyone can remember: It’s time to end the Constitution.
“The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism,” argue the essayists from their lofty perch in the faculty lounge. They betray an impatience with the democratic process and a proclivity for implementing drastic social change without the messy process of building consensus as they add in the latest progressive talking points. For example, the filibuster must be abandoned so they can vote to turn territories, which just happen to be very liberal, into states. This would fix a Senate structure that does not provide for “equity,” unfairly benefiting small (read: red) states at the expense of the big (i.e blue) ones.
But the authors’ argument then goes fully deconstructionist, ultimately centering around whether constitutions themselves are ever desirable: “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.” And while the right believes the left has taken outrageous liberties with constitutional provisions over the years, the authors somehow believe the opposite: “Liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.”
Indeed, after trying to abolish the filibuster to pack the Supreme Court with enough progressives to constitute a majority – and coming within a vote or two of getting it done – leftists have all but given up on the Constitution and the high court as pathways to the type of socialist-inspired reform they seek. More precisely, they have given up hope that their notion of how the nation should be governed – as a European-style social democracy – can ever be implemented because an overwhelming majority of regular Americans believe in our constitutional republic as it functions now and has for more than two centuries. But at least there are some among them who will admit what we have long suspected. And in the “paper of record,” no less.
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The broader progressive argument circa 2022 goes something like this: The Constitution is a fading, outdated parchment authored by slaveholders, and its pesky amendments forcing the right to free speech and self-protection down our throats are no longer relevant – because we must take a stand against hate speech, gun violence, the pro-life movement, and almost anything else promoted by the slave-owning Founders and Framers. Translation: We don’t have nearly enough public support to alter the foundation of this constitutional republic. So we must abolish it – like everything and everybody else we have tried to cancel.
Having no constitution, as the authors inexplicably seem to suggest, is an obvious invitation to tyranny and chaos; a constitution watered down by constant amendment will quickly lose its meaning, and more importantly, the force of its authority. A critical element of the document composed by the Framers was the ability to amend it – but not easily. A rigorous process dependent on widespread public support – essentially the approval of two-thirds of states voting in the US House and three-fourths of state legislatures or ratification conventions – was deliberately designed to make the process of altering constitutional provisions entirely dependent on the will of a supermajority of the American people.
As the Framers expected, the Constitution has been altered sparingly, about once a decade on average for a total of 27 times in 235 years. But the process put in place ultimately allowed for some of the most pivotal changes in the country’s social fabric over time. In addition to the ten most consequential amendments, known as the Bill of Rights, the process has led to the abolition of slavery, voting rights for blacks and women, and limits on presidential terms. It has also allowed for prohibition on alcohol, which was reversed with another amendment 14 years later, and the institution of the income tax. Not even policies that seemed worthy enough at the time to garner widespread public support proved to be wise or just. But through it all, the law of the land has proven more than sufficient to weather the many storms inherent in a free country.
Trying to change the rules because you’re not getting your way would hardly benefit either the winners or losers. A successor document acceptable to both sides is a pipe dream. The lack of fundamental, north-star principles would open up the spigot for the type of corrupt, unrestrained central authority which has metastasized across the globe. And it would ultimately throw an already deeply divided nation to the edge of the breaking point so many on both the right and left justifiably fear. Even leftist law professors in their ivory towers should know better.
