Down With the Constitution!

In recent years, many liberals have become openly hostile to the Constitution. The present moment in history, with the Democrats controlling the House by the barest of majorities, a 50/50 Senate with a Democratic vice president, and a Democratic president, has heightened liberal frustration with the Constitution. With their hands, for a brief moment at least, on all of the levers of power, why can’t the Democratic Party effect a total transformation of American society?

To a normal person, that question perhaps answers itself. But check out this op-ed in the New York Times, which is literally one of the stupidest things I have ever read. Its authors are Ryan Doerfler and Samuel Moyn, professors at Harvard Law School and Yale Law School respectively. The op-ed advocates doing away entirely with the Constitution. Why? The authors don’t quite put it this way, but the reason is that the Constitution fails to establish a pure democracy by plebiscite, and makes it difficult to use a transient majority to effect radical change. Those who had a high school civics class understand that this is more or less the point.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change…

But neither the Electoral College nor the Senate inherently advances, or hampers, “redistributive change.” The fact that small states are overrepresented in the Senate with respect to population–a chief grievance of the authors–could just as easily be a force for redistributive change if, for example, small states unite in pressing for redistribution of wealth from wealthier large states to poorer small states.

…while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action.

It is shocking that two law professors could write that sentence. The Supreme Court did not use the concepts of due process and equal protection to “invalidate…abortion rights.” On the contrary, it was the misuse of “due process” by liberal justices that created the fictitious right to abortion. The Dobbs decision correctly took that concept out of the equation and returned the issue of abortion to the democratic process, where it belongs. And, by the way, deciding issues democratically rather than through anti-majoritarian institutions like the Supreme Court is exactly what these authors claim to be in favor of. Their thinking is hopelessly confused; in fact, they go on to contradict themselves:

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.

With respect to abortion, that is exactly where we are after Dobbs. But the references to labor unions are incomprehensible. Labor unions are obviously permitted by the Constitution, while by the same token they are not required. Unions have been the subject of federal legislation for nearly 100 years. It is impossible to understand what point these authors are trying to make.

So how do the authors intend to achieve their avowed goal of doing away with our constitutional republic? Forget about packing the Supreme Court, they want to pack the Union with new states:

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

The Times op-ed links to a 2020 article in the Harvard Law Review that advocates a plan whereby leftists can take permanent control over the United States, in effect staging a coup. The proposal is to break the District of Columbia down into 127 neighborhoods, and admit each of those 127 neighborhoods as a new state. You think I’m kidding?

To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

This will work because the District is overwhelmingly Democratic:

[E]very measurable subdivision of D.C. voted overwhelmingly for the Democratic party in the 2016 election, so the Democratic caucus in Congress could be confident that new states created within the District would elect like-minded delegations to Congress.

If that doesn’t do it, the op-ed authors have more ideas:

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.

Apart from its sheer stupidity, we see here another example of the pervasive bad faith with which the Left operates. Frankly, it would be more honest and no less lawless to advocate taking over the U.S. Army, mobilizing tanks and howitzers and staging an old-fashioned coup, in order to install the Democratic Party permanently in power.

Finally, I am not really surprised that a Yale Law School professor could write something as ridiculous as the Times op-ed. Yale Law School has always been rather goofy. But for a Harvard Law professor to sink to this depth reflects a dizzying decline in academic standards.

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