Jonathan Turley: “Reclaim America from Constitutionalism”: Law Professors Now Call to “Pack the States,” Rather than Pack the Court

Below is my column on the increasing condemnations of “constitutionalism” as the root of our problems as a nation. The latest such attack came from two professors in the New York Times in a column titled The Constitution Is Broken and Should Not Be Reclaimed. It is part of a crisis of faith sweeping the nation. There are good-faith objections to such institutions as the electoral college, but the growing attacks on the Constitution reflects a more significant break with our constitutional values and traditions.

by Jonathan Turley:

It appears that we may finally to be coming out of the campaign on the left to “pack the court” with a liberal majority. That is good news. The problem is that many on the left have turned their ire on the Constitution itself as the root of all evil in our country. In a New York Times essay, law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are calling for the Constitution to be “radically altered” to “reclaim America from Constitutionalism.” In order to accomplish this dubious objective, they call for shifting from the “Pack the Court” to “Pack the States.” The attack on “constitutionalism” is chilling but these professors are not the first to lash out at our Constitution as the scourge of social justice.

The New York Times column called for citizens to view the Constitution as the real enemy and to push to â€œradically alter the basic rules of the game.” The attack on our Constitution has become something of an article of faith for the far left in recent years.

Recently, Georgetown University Law School Professor Rosa Brooks drew accolades for her appearance on MSNBC’s “The ReidOut” after declaring that Americans are â€œslaves” to the U.S. Constitution and that the Constitution itself is now the problem for the country.

CBS recently featured Boston University Professor Ibram X. Kendi, who proclaimed that the Second Amendment was little more than “the right to enslave.”

MSNBC commentator and the Nation’s Justice Correspondent Elie Mystal has called the U.S. Constitution “trash” and argued that we should ideally just dump it. Mystal, who also writes for Above the Law, previously stated that white, non-college-educated voters supported Republicans because they care about “using their guns on Black people and getting away with it.”

Doerfler and Moyn make the same case with a twist in seeking to pack the states. They insist that “The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.” Rather than recognize that this document has produced the longest standing and most stable democratic system in history, professors denounced it as a “some centuries-old text” because it stands as a barrier to their social and political agenda. The problem, they suggest, is that many liberals still believe in constitutionalism as opposed to raw majority power.

Some are calling for “popular democracy” as an alternative approach to governance. The term is often associated with “direct democracy” where citizens have unfiltered and direct say in government decisions. It was the model expressly rejected by the Framers in favor of our system of representative democracy.

In Federalist 10, Madison wrote:

“Pure democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

Instead, he created a system by which public passions could be filtered or expressed through a smaller group of representatives, to temper and refine popular impulse.

In addition to our system of representative democracy, we have institutions designed to resist popular impulse or demands. The United States Supreme Court is the principal example in using elements like life tenure to stand against majoritarian demands and what Madison called “the tyranny of the majority.”

That system has served us well. It was the countermajoritarian role that allowed the Court to strike down bans on interracial marriage, decriminalize homosexuality, and protect the rights of the accused.

However, the constitutional process strives for consensus and compromise, key elements in the success and stability of our system through decades of political and social upheaval. Yet, these professors complain that the left has â€œagonizingly little to show for it” and should now “radically alter the basic rules of the game.” After all, they noted, â€œIt 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.”  That is certainly correct. Without constitutionalism, everything then becomes a majoritarian muscle way with little need to compromise or even to consider the views of the minority.

The solution, therefore, is not to “pack the court” but “to pack the Union with new states” to change the Constitution and “reinvent” society.

They are at least open and honest about their motivations and means. The essay confirms the view of critics that the push of Democrats to create new states in Puerto Rico and D.C. are meant to secure an insurmountable majority in the push for radical changes.

It is similar to the remarks of Harvard professor Michael Klarman two years ago for court packing and insisted that Democrats can change the system to guarantee Republicans “will never win another election,” at least not without abandoning their values. However, Klarman warned “the Supreme Court could strike down everything I just described” so the court must be packed in advance to allow these changes to occur.

Democratic leaders have echoed these sentiments by calling for court packing and questioning core institutions. Sen. Elizabeth Warren, D-Mass, has declared the Supreme Court illegitimate and has called to pack the Court for rending opinions against “widely held public opinion.”

Rep. Alexandria Ocasio-Cortez, D-N.Y., even questioned the institution’s value: “How much does the current structure benefit us? And I don’t think it does.”

The attack on “constitutionalism” says all that one needs to know about this campaign. The Constitution has long been the very thing that defined us. It is a shared covenant of faith, not with the government but with each other. Untethered from such constitutional rules, these professors seek to be freed from constitutional restraints in pursuing radical changes.  It is so liberating that these professors can write that Congress should “openly defy” the Constitution to “get a more democratic order.” Such Orwellian doublespeak does not little to shield the true purpose of this campaign to accumulate powers, which Madison declared “justly be pronounced the very definition of tyranny.”

For those trying to stay ahead of the mob, we are now moving beyond the Constitution. Now we must “pack the states” to liberate ourselves from that pesky Constitution. After that, our “reinvention” can begin. Ironically, however, we will be reinventing ourselves into the type of system that the Framers rejected roughly 250 years ago.