It’s fair to say that if a person becomes an Ivy League law professor that person is certifiably intelligent. It is not a fair conclusion that they live in the real world.
Case in point is the recent oped in the New York Times from Ryan Doerfler and Samuel Moyn, law professors at Harvard and Yale, respectively. In it they argue that the Constitution is so fundamentally flawed that it cannot be reinterpretted in a way that benefits liberals — and so it should be scrapped.
Arguments like theirs push me ten yards further down the field — with a fresh set of downs — away from the left. Their argument is so bad that it’s hard to know where to start, but let’s begin with practicality.
What if they’re right (and they’re not) that the Constitution has outlived its usefulness? How do we get rid of it? Doerfler and Moyn suggest “union packing.” They would create a bunch of new states out of the neighborhoods of Washington, DC. No, I am not making this up. And now with all of these new and overwhelmingly liberal “states” Congress could take a wrecking ball to the Constitution. They could make the Senate irrelevant and get rid of the Electoral College, just for starters.
In order to do that you would have to create enough new liberal states to ensure adoption of constitutional amendments. They don’t run the numbers for us, so I will. We would need three-quarters of the states to approve an amendment. Currently, only 17 states have legislatures where the Democrats control both houses. Three-quarters of 50 is 38 states, meaning that — if all of those 17 states were taken for granted in approving an amendment — you would have to add another 21 states out of DC neighborhoods to get enough to pass an amendment. But wait, now that you’ve added all those states, the goal posts have moved. Three-quarters of 71 states is now 53. You can keep going, but it’s sort of like defining pi. Actually, the authors seem to suggest that all of DC’s 127 neighborhoods be admitted as separate states. I kid you not.
They also fail to deal with the underlying reason for the Senate and the Electoral College. Those institutions, especially the Senate, were created to give small states an incentive to join the new union and to approve the original Constitution. At the time, they were mostly worried that massive Virginia would rule over all if it got unchecked representation by population. But that underlying reason has not changed. Why on earth would North Dakota want to cede the leverage it has over California? It might be “unfair” in a sense, but it’s the price we pay to keep 50 diverse states together in one country. And, at least for me, that’s more important than any particular policy preference of the moment.
In any event, the profs don’t deal with the fact that even before you get to ratification by the states, you would need two-thirds votes in the House and Senate, something that would certainly be out of reach.
While not bothering to point any of that out explicitly, they seem to acknowledge it because they go on to their equally unhinged plan B: something they call the “Congress Act.” Basically, the idea here is that Article III of the Constitution gives Congress the authority to strip courts (including the Supreme Court) of almost all of their jurisdiction. They write, “In so doing (demoting the Senate and abolishing the Electoral College), 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.”
But, of course, invoking Article III would require overcoming or abolishing the Senate filibuster first. The authors don’t mention that, but I suppose if you create enough DC neighborhood-states you could do it. Still left unanswered is how you create all those new states in the first place with the filibuster still in place. It seems to me that all roads lead back to a big enough Democratic majority in the Senate to do away with the filibuster — a majority that would have to be earned under our old, cranky system for which the authors have such disdain. And, of course, if you succeed in doing away with it, that can come back to bite you when the other guys have a slim majority.
So, in a practical sense, Doerfler and Moyn are suggesting something that is extremely unlikely to happen and which never should.
Which brings us to the discussion of why it shouldn’t. For one thing, the writers are selective about their history. They don’t even acknowledge the Warren Court. For decades the civil rights movement had tried to get legislation through Congress, but they were thwarted, mostly by segregationist Southern Democrats. It was the federal courts, using tools provided for them in the amended Constitution, that broke the log jam. The Fourteenth Amendment’s guarantee of equal protection of the laws became an earth mover, used to tear down all manner of inequality in modern society. That doesn’t get mentioned by our good professors.
They also fail to mention more recent history. It was the courts — and Donald Trump’s own nominees — who had no time for his efforts to overthrow the legitimately elected Biden administration before it even took office.
I agree with the authors that the Supreme Court has become wildly out of synch with where most Americans are at on a range of issues. But that is true only because of various accidents of history (Trump got three appointments in four years while Barack Obama had only two in eight) and rank hypocrisy on the part of Mitch McConnell. And it’s also true that this is nothing new. Franklin Roosevelt was frustrated by that conservative Court’s upending some of his New Deal legislation. He threatened to pack the Court, they came around, and over time the Court transitioned to one that was more in touch with popular opinion.
Also, keep in mind that when the Warren Court got up its full head of steam it wasn’t popular either. In that case, a lot of Americans thought the Court had swung too far to the left and was out of touch with real on-the-ground issues of crime and disorder. An adjustment back to the center was in order and that happened as well. Now, things have moved too far to the right. It happens, but it’s no reason to toss out the whole system. In fact, the idea that the Court is a check on popular opinion is, in some ways, the point of its existence. And, over time, it works as a check in both directions.
Liberals like to argue that over the course of the nation’s history the court has stopped more progress than reaction. But how can liberals argue, as they do, that the decision overturning Roe is the first time that the Court has taken away a right it has extended and then say that the Court has been so reactionary over the long haul? Doesn’t that argument about Roe concede that over time the Court has been expanding rights?
What the Constitution provides is a center, a foundation, a rock. And like a rock, it tends to weigh things down, to impede rapid change. I like that because I recognize that — in the long-run — it will impede movement toward fascism just as much as it will slow down progress that I would like to see.
Finally, our Ivy Leaguers don’t acknowledge that, while the majority of the Supremes are in fact very conservative, Biden has been pretty successful in appointing liberals to lower federal courts. That will percolate up eventually.
We’re going through one of those periods in our history where the Supreme Court is out of touch with popular opinion. Over time, things will come back into balance. Those who would throw out our entire system should be careful what they wish for.
Which brings me to my final point. Doerfler and Moyn live in deeply leftist campus communities in Boston and New Haven. Their whole world and their daily experience screams at them that this Court is out of touch with what they see as reality. They may want to forget that 75 million Americans voted for Donald Trump. In a country like that do you really want a more pure, direct form of democracy?
Want to read more curiously conservative views from a liberal? Pick up a copy of Light Blue: How center-left moderates can build an enduring Democratic majority.