You gotta love the Terrible Twins, Ryan D. Doerfler and Samuel Moyn, professors at Harvard Law School and Yale Law School. They just wrote a piece for The New York Times “The Constitution is Broken and Should Not Be Reclaimed.”
What is the problem? Well, quite simply that liberals are not getting what they want.
But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it.
Really. So Roe vs. Wade, diversity, gay marriage, etc. was “agonizingly little.”
See there is a terrible problem.
[C]onstitutions — 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.
Yes, but I tell you what, messieurs professors. Suppose that what people agreed on once upon a time was the New Deal welfare state, and then the post-civil rights era race politics of the last 50 years. And suppose that, for all that time liberal law Supreme Court justices have been ruling America with a legal sword: their word is their command. And suppose now, for the majority of Americans, “what the present and future demand” is not what liberal law professors and administrative bureaucrats and race warriors want, but an America in which ordinary people can wive and thrive.
Do you not see, noble law professors, that if you abolish the current Constitution and make it easy to legislate and administer “change” you may find that the Trumpist insurrectionists will make mince meat of your university sinecures and comfortable articles in The New York Times.
Do you not understand, noble lords, that the point of a Constitution is that, when the other guys are in power, there are all kinds of barriers and hurdles that stop the Other Guys from, oh, I don’t know, siccing the FBI on you.
That is the point of a Constitution. To make it hard for the other guys to commit injustice on you.
Now I assume that you two noble law professors cannot imagine that in a post-Constitution world that you guys would be worse off. What is galling you, right now, is that conservatives, following the rules over a 50 year period, eventually got a majority on the Supreme Court that reversed some of the key liberal Supreme Court decisions of the past 50 years. But actually, that had nothing to do with the Constitution. It had to do with winning elections and slowly replacing liberal justices with conservative justices.
So do you not see, noble law professors, that this slow and steady process has been immensely beneficial to liberals? It allowed you to use the Supreme Court to legislate your agenda without persuading the majority of American voters first. And then it was really, really hard for the hated conservatives to reverse it. If the restraints of the Constitution weren’t in place it would be much easier for far-right presidents and far-right legislators to make mince meat of treasured liberal progress.
Our noble lords conclude:
By leaving democracy hostage to constraints that are harder to change than the rest of the legal oder, constitutionalism of any sort demands extraordinary consensus for meaningful progress.
I think that is the whole idea. Because if a simple majority in Congress can legislate far-reaching change, then the losers might decide to oppose the majority in an insurrection. And we all know that insurrection is the worst thing in the world when committed by the far-right. That’s why Sen. Daniel Patrick Moynihan meant, half a century ago, when he said that when you pass a big bill that really changes things, you need a 70-30 majority in the Senate. You need to sell the idea that “everybody” is in agreement except a few old fossils.
Back in the day, the Founders put all kinds of checks and balances in the Constitution because they were fresh off a revolutionary war against the perceived injustices perpetrated by King George of England. They realized that they would not be in power forever. They understood how fragile any government is, and how easily it can implement foolish measures that provoke angry pushback.
But our noble law professors can’t seem to imagine that. They want to “engage in the constant reinvention of our society under our own power” and devil take the hindmost.
You would think that our noble ruling class would, in the aftermath of the Trump populist rebellion, be writing articles in The New York Times that we should legislate all kinds of safeguards to protect the current regime and its supporters. But they don’t. They cannot imagine a future in which they are not making the rules.
The fools. (By the way, you should see the comments at the NYT!)