This week The New York TimesPublished its latest opinion piece calling for the death of the Constitution of the United States. Ryan Doerfler, and Samuel Moyn are Harvard law professors and Yale lawyers, respectively. The authors argue that constitutionalism has impeded the Left’s progress. “The idea of constitutionalism,” they correctly write, “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.” This, of course, orients the process of law toward the past: there are certain lines that simply cannot be crossed. And, as Doerfler and Moyn point out, “constitutionalism of any sort demands extraordinary consensus for meaningful progress.”
And herein lies the problem for Doerfler and Moyn: constitutions “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.” The solution, they say, lies in dispensing with the Constitution entirely; the proper solution to the Constitution is in “direct arguments about what fairness or justice demands.” After all, they admit, “It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. 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.”
What can be done to get rid of the Constitution? The authors suggest packing the Union with more states; “reorganizing our legislature in ways that are more fairly representative of where people actually live and vote”; turning the Senate into a legislative vestigial organ, without any actual power.
They are at least saying it loudly.
The truth is that the Constitution is “antidemocratic,” in the sense that it sets up a series of limits on what a democratically elected government can do. It is a chart of limited powers delegated by both the peoples and the states to federal government. The people, as well as the state governments, would never have agreed to pure populism advocated by Doerfler & Moyn. They detested the notion of a federal government that was unregulated and ruled by populist passions. To prevent mob majority rule, they established checks and balances. The simple truth was that the most effective and responsive government is one that serves homogeneous interests. Interests diverge when we take control away from people. This is why government should be given less power as it abstracts from people.
For precisely this reason, the Left loathes the Constitution. For the Left, the Constitution serves as a barrier to their utopian vision of restructuring human relations and humanity. Large government, according to the Left, is supposed to act as a leveling agent among humans, and impose the viewpoints of both the left and the right. Because local governance can lead to diversity in practice and viewpoints, federal government is the most effective tool for shaping and molding. If you can get rid of the Constitution’s limitations on federal government powers, transformational change is possible.
Problem is, such a view ignores human history. It is very unlikely that any government with the power to regulate a multitude of areas and lifestyles, including over 325 million humans, will be successful. Both benevolence as well as success in governance require limits. While it may seem appealing to people who want drastic changes on a large scale, drastic changes in the Constitution are more likely to be seen as tyranny and progress.