For decades, the American Constitution has been both an obstacle and an aid to those who promote the liberal agenda. True to its relativist ethos, today’s left has not particular attachment to the Constitution. When the document can be interpreted to the left’s advantage, its activists are enthusiastic defenders of constitutional rights. When the right derives too many benefits, the left has no problem calling for the Constitution’s demise.
Indeed, Harvard Prof. Ryan D. Doerfler and Yale’s Samuel Moyn recently wrote the op-ed “The Constitution Is Broken and Should Not Be Reclaimed” in The New York Times. The two guest editorialists from two of the most prestigious law school in the country say It is time to move on to more “democratic” processes without the burden of constitutionalism.
The Constitution as an Obstacle
The American Constitution is understandably an obstacle to the left today.
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Modern constitutions were set up worldwide to thwart the effort of ambitious political leaders and parties who might use law to their advantage. Constitutions enumerate certain rights and legal principles that are considered sacred and beyond the reach of those who might subvert an established (and therefore conservative) order.
The American Constitution is the supreme law of the land. It is a higher law upon which all law is based. Thus, the document is an obstacle against a left seeking abrupt radical changes, because it is hard to amend and provides continuity by insisting that it be interpreted in accordance with the past decisions.
The Constitution as a Support for Liberal Causes
Modern constitutions can also help promote liberal changes favoring class struggle and other Marxist narratives.
Liberal judges can always be found that to “interpret” the Constitution to justify just about anything. Legal scholars have long found new “rights” in the shadows, penumbras and nuances of the Constitution. This discovery happened, for example, in the case of abortion and same-sex “marriage.” With one fell swoop, activist judges legislating from the bench can impose their will upon a populace and turn their liberal opinions into “settled law.”
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While the Constitution is a higher law, it is not the higher law. It was formulated by men with fallen nature. They can err and deviate law from its purpose. Pre-modern law held natural law as the unchangeable standard upon which all law was based. It consisted of objective and God-given notions of good and evil, valid for all times and peoples.
Thus, the American Constitution can be manipulated since it claims no higher authority than its human legislators and judges. It is only as stable as the human element over which it governs. It does not have the fixed moral foundation based on natural law so needed in these evil times.
The Victory of the “Stupid Party”
The left has now declared war on the Constitution because the system is too cumbersome. One reason the professors give for this shift is because leftists have lost the battle to control the Constitution. Conservatives have outmaneuvered them and the authors conclude it is better to withdraw.
Indeed, English philosopher John Stuart Mills (1806-1873) was the first to label conservatives as the “stupid party.” The sophisticated left has always acted as if the designation were true. However, the leftist professors now admit that conservatives have run circles around the left, remaking “constitutional law by brainstorming ideas, creating networks of potential judges” and taking over the judicial establishment by following the rules.
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In a rare acknowledgement of defeat, liberals admit “the consolidation of right-wing control of constitutional law” despite the overwhelming liberal domination of the media academia and the political establishment. In this particular case, the “stupid party” might now be called the “smart party” or perhaps better the “outsmart party.”
Getting Rid of the Constitution
This sudden opposition to the Constitution reflects how much the left has changed. For a long time, the left was willing to operate inside a constitutional framework. Now it has reach a point of anarchical development that it can no longer follow the rules. This is not because the framework is unwieldy but because it is a framework that imposes rules, continuity and restrictions.
Revolutions are easier without rules. Rather than dispute the rules, it is better to be rid of the framework. Thus the professors clearly state “the real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.” In other words, there should be no sacred legal rights and principles beyond the reach of parties and citizens.
The best way to dispose of the Constitution is to declare it “undemocratic” and “inadequate” for the times. Denounce the document as “hard-wired” to favor “reactionaries.” It draws too much emphasis on “due process and equal protection” to the detriment of “redistributive change” or even “environmental justice.”
Walking Away From Constitutional Restraints
The professors’ manifesto declares this uncoupling from the Constitution might be done unconstitutionally and without great fanfare. It would consist of walking away from constitutional restraints of the supreme law of the land. Legislators would be encouraged to break legal precedents of the ages and replace them with the “ordinary expressions of the popular will.”
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No need to consult the past. They claim: “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 making law without regard for a higher law, the guard rails can be taken off the track and politicians in their infinite wisdom, will be free to create laws advocating whatever they deemed appropriate. This process would “do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past.” Thus, the “the distinction between ‘higher law’ and everyday politics effectively disappears.”
The message is clear. The rule of law no longer matters. True to the left’s egalitarian metaphysics, all structures defending any distinctions, like higher law, must be overturned. All institutions must evolve to reflect ever more radical forms of class struggle and social equality. The professors desire “the constant reinvention of our society under our own power, without the illusion that the past stands in the way.”
Tearing down the structures of the past has always been the tactic of revolutionaries. In this case, the dictatorship of the new proletariats of gender, identity and climate change is appearing on the horizon. It is demanding that all obstacles must be removed…in the name of “democracy.” This must not be allowed to happen. The war on the Constitution must be denounced for what it is: an important step on the path to a new tyranny.
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