The Constitution Is Broken and Should Not Be Reclaimed

[Valin]

The New York Times (a former newspaper)

Ryan D. Doerfler and Samuel Moyn

Dr. Doerfler and Dr. Moyn teach law at Harvard and Yale.

Aug. 19, 2022

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

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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 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.

(Snip)

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. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

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Cliffnotes version: We're not getting out way, so lets change the rules.

Be Afraid...Very Very Afraid! This is being taught to the future leaders.