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The Counter-Constitutional Movement: The Assault on America’s Defining Principles


By: Jonathan Turley | September 25, 2024

Read more at https://jonathanturley.org/2024/09/25/the-counter-constitutional-movement-the-assault-on-americas-defining-principles/

Below is my column in the Wall Street Journal on the growing counter-constitutional movement in the United States. This assault on the Constitution is being led by law professors who have lost their faith in the defining principles and institutions of our Republic.

Here is the column:

Kamala Harris declared in Tuesday’s debate that a vote for her is a vote “to end the approach that is about attacking the foundations of our democracy ’cause you don’t like the outcome.” She was alluding to the 2021 Capitol riot, but she and her party are also attacking the foundations of our democracy: the Supreme Court and the freedom of speech.

Several candidates for the 2020 presidential nomination, including Ms. Harris, said they were open to the idea of packing the court by expanding the number of seats. Mr. Biden opposed the idea, but a week after he exited the 2024 presidential race, he announced a “bold plan” to “reform” the high court. It would pack the court via term limits and also impose a “binding code of conduct,” aimed at conservative justices.

Ms. Harris quickly endorsed the proposal in a statement, citing a “clear crisis of confidence” in the court owing to “decision after decision overturning long-standing precedent.” She might as well have added “because you don’t like the outcome.” Sen. Sheldon Whitehouse (D., R.I.) has already introduced ethics and term-limits legislation and said Ms. Harris’s campaign has told him “That your bills are precisely aligned with what we are talking about.”

The attacks on the court are part of a growing counter constitutional movement that began in higher education and seems recently to have reached a critical mass in the media and politics. The past few months have seen an explosion of books and articles laying out a new vision of “democracy” unconstrained by constitutional limits on majority power.

Erwin Chemerinsky, dean of the UC Berkeley law school, is author of “No Democracy Lasts Forever: How the Constitution Threatens the United States,” published last month. In a 2021 Los Angeles Times op-ed, he described conservative justices as “partisan hacks.”

In the New York Times, book critic Jennifer Szalai scoffs at what she calls “Constitution worship.” She writes: “Americans have long assumed that the Constitution could save us; a growing chorus now wonders whether we need to be saved from it.” She frets that by limiting the power of the majority, the Constitution “can end up fostering the widespread cynicism that helps authoritarianism grow.”

In a 2022 New York Times op-ed, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for liberals to “reclaim America from constitutionalism.”

Others have railed against individual rights. In my new book on free speech, I discuss this movement against what many professors deride as “rights talk.” Barbara McQuade of the University of Michigan Law School has called free speech America’s “Achilles’ heel.”

In another Times op-ed, “The First Amendment Is Out of Control,” Columbia law professor Tim Wu, a former Biden White House aide, asserts that free speech “now mostly protects corporate interests” and threatens “essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.”

George Washington University Law’s Mary Ann Franks complains that the First Amendment (and also the Second) is too “aggressively individualistic” and endangers “domestic tranquility” and “general welfare.”

Mainstream Democrats are listening to radical voices. “How much does the current structure benefit us?” Rep. Alexandria Ocasio-Cortez (D., N.Y.) said in 2021, explaining her support for a court-packing bill. “I don’t think it does.” Kelley Robinson, president of the Human Rights Campaign, said at the Democratic National Committee’s “LGBTQ+ Kickoff” that “we’ve got to reimagine” democracy “in a way that is more revolutionary than . . . that little piece of paper.” Both AOC and Ms. Robinson later spoke to the convention itself.

The Nation’s Elie Mystal calls the Constitution “trash” and urges the abolition of the U.S. Senate. Rosa Brooks of Georgetown Law School complains that Americans are “slaves” to the Constitution.

Without counter majoritarian protections and institutions, politics would be reduced to raw power. That’s what some have in mind. In an October 2020 interview, Harvard law professor Michael Klarman laid out a plan for Democrats should they win the White House and both congressional chambers. They would enact “democracy-entrenching legislation,” which would ensure that “the Republican Party will never win another election” unless it moved to the left. The problem: “The Supreme Court could strike down everything I just described, and that’s something the Democrats need to fix.”

Trashing the Constitution gives professors and pundits a license to violate norms. The Washington Monthly reports that at a Georgetown conference, Prof. Josh Chafetz suggested that Congress retaliate against conservative justices by refusing to fund law clerks or “cutting off the Supreme Court’s air conditioning budget.” When the audience laughed, Harvard’s Mr. Doerfler snapped back: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.”

The cry for radical constitutional change is shortsighted. The constitutional system was designed for bad times, not only good times. It seeks to protect individual rights, minority factions and smaller states from the tyranny of the majority. The result is a system that forces compromise. It doesn’t protect us from political divisions any more than good medical care protects us from cancer. Rather it allows the body politic to survive political afflictions by pushing factions toward negotiation and moderation.

When Benjamin Franklin said the framers had created “a republic, if you can keep it,” he meant that we needed to keep faith in the Constitution. Law professors mistook their own crisis of faith for a constitutional crisis. They have become a sort of priesthood of atheists, keeping their frocks while doffing their faith. The true danger to the American democratic system lies with politicians who would follow their lead and destroy our institutions in pursuit of political advantage.

Mr. Turley a law professor at George Washington University and author of “The Indispensable Right: Free Speech in an Age of Rage” 

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Free Speech, Law, Political

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“American Democracy Doesn’t Survive”: Brown Professor Warns of the “Dangers of the Constitution”


By: Jonathan Turley | September 13, 2024

Read more at https://jonathanturley.org/2024/09/11/the-moment-where-american-democracy-doesnt-survive-brown-university-professor-runs-movement-trashing-the-constitution/

We have been discussing a slew of books and interviews by academics denouncing the Constitution or individual rights as a threat to democracy. The latest is Brown University Political Science Professor Corey Brettschneider who is warning about the “dangers of the Constitution.” It is all part of a counter-constitutional movement challenging the very documents that have protected freedoms for centuries. It is hardly a perfect record, but it has served the country and its citizens well. Brettschneider explained to the Brown Daily Herald that the constitution is not only a danger to us all, but “the traditional checks and balances don’t work, and that impeachment and the Supreme Court have failed to check rogue presidents.” He warned that “it could be that we’re at the moment where American democracy doesn’t survive.” The reason appears in large part Trump. Like many, Brettschneider brushes over the fact that the system has worked as designed, including after the Jan. 6th riot. Notably, I agree with aspects of the book in highlighting the courageous struggle of dissenters in our history and the criticism of figures like John Adams, who is also criticized in my new book, “The Indispensable Right: Free Speech in an Age of Rage.”

Moreover, he is correct that abusive presidents have avoided impeachment, and the Court has historically failed to protect individual rights. We both criticize those failures, particularly by the Court. Ultimately, however, the Court did embrace more robust views of individual rights and has repeatedly blocked the overreach of presidents.

Brettschneider describes what he calls “constitutional constituencies” in their struggle against such abuses.

“These constitutional constituencies, the citizens readers of the Constitution who played a critical role in defending and furthering our democracy, therefore disrupt a standard story told by constitutional law scholars and political scientists – experts who declare that checks on the president come mainly from Congress or the Supreme Court or locate the foundation of our democracy with the writers of the Constitution in 1787.”

He adds “If history is any guide, today’s crisis makes this a time ripe for constitutional recovery. In that sense, this book offers hope for current citizens seeking to restore democracy.”

While the book is about historical abuses by presidents and the struggle against them, the book’s pitch pushes all of the anxiety buttons: “Imagine an American president who imprisoned critics, promoted white supremacy, and sought to undermine the law to commit crimes without consequence.”  (The book addresses five prior presidents and the pitch does not make direct reference to Trump).

I have no objection to those who speak out against Trump or his conduct. That is part of a worthy national debate in this election year. However, more professors and pundits are suggesting that it is not just Trump but our Constitution that is threatening our democracy. While others have called the Constitution “trash” in their books, Brettschneider is a bit more circumspect in his interview and reportedly calls the Constitution a “dangerous document.”

The remarks of Professor Brettschneider is part of a growing library of books and interviews attacking the Constitution. As discussed earlier, law professors have led this effort. For example, in a New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism.”

Other professors have called for amending the First Amendment and have attacked free speech as a danger.

The United States Constitution is the oldest and most successful Constitution in history. It has survived crises that have destroyed other nations. Yet, we are a people who have not experienced true tyranny.  We can lose our appreciation for how fortunate we are to have this system and the stability that it has afforded this country.

In challenging constitutional values like the system of checks and balances, these academics are seeking to strip away the very elements that have forced compromise and moderation throughout our history. It is the very genius of James Madison that allowed the most pluralistic nation on Earth to govern as one.

The post-constitutional world that some professors describe is no doubt attractive to many. It promises more immediate gains from raw political power. However, it would endanger all rights by reducing the guardrails that have served us so well for centuries.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

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Education, Free Speech, Law

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