A Farewell to the Constitution?

The editorial pages of the Times increasingly feel like an obituary section where the departed is the United States Constitution.

Via Wikimedia Commons
'Foundation of the American Government,' by John Henry Hintermeister. Via Wikimedia Commons

The editorial pages of the Times increasingly feel like an obituary section where the departed is the United States Constitution. One mourner is Linda Greenhouse, who offers a “requiem” for the Supreme Court after the justices realized that the Constitution doesn’t, in fact, ordain a right to abortion. She addresses Their Honors directly, saying, “What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.”

The liberals’ loss of faith goes beyond Ms. Greenhouse, as an opinion piece this weekend by the sages Ryan Doerfler and Samuel Moyn illustrates. Facing a string of liberal defeats at the high court, the professors argue that the “real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.” The constitution is “broken” and “inadequate,” which leads to “woeful outcomes.”

Rather than provide what “the present and future demand for and from those who live now,” the Constitution misdirects us to “a dispute over what people agreed on once upon a time.” Progressives are advised to abjure making better arguments and instead, “radically alter the basic rules of the game.” Professors Doerfler and Moyn ask, “Why justify our politics by the Constitution or by calls for some renovated constitutional tradition?”

Messrs. Doerfler and Moyn decline to do so, and instead propose a push to “pack the Union with new states” and passage of a “Congress Act” to diminish the Senate’s role and reorganize the legislative branch. There is no disputing that progressives suffered setbacks on everything from abortion to gun rights to the adminsitrative state. Evidently their response to losing is to scrap the Constitution, though on what basis, besides pique, is not clear. 

They call for an America where “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.” Wait, though, isn’t that precisely what the high court just did in Dobbs, returning abortion to the legislatures? In any event, the professors ridicule the notion that “there needs to be some higher law.”

Yet a “higher law” is precisely what binds America in an age of discord and division. Our higher law is a model of liberalism, inviting campaigns of amendment. Meantime, in 1795, President Washington reckoned, in a letter to the selectmen of Boston, “I have weighed with attention every argument, which has at any time been brought into view. But the Constitution is the guide, which I never will abandon.”

Those words command contemporary concurrence. This is a moment of constitutional foment, with the court looking at old precedents with new eyes and those on the left like Representative Alexandria Ocasio-Cortez angling to pack the court and cut its jurisdiction. The conviction that “the past stands in the way,” however, sounds like an exchange of the American revolution of 1776 for the French one of 1789. We’ll pass. 

The New York Sun

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