NYT Op-Ed: Throw out the ‘Broken Constitution’ and ‘Reclaim America’

The “broken” and “famously undemocratic” U.S. Constitution “stands in the way” of “real” freedom and democracy, according to a New York Times op-ed by two Ivy League law professors.

The pair issued a call to “radically alter the basic rules of the game” by no longer requiring us to “justify our politics by the Constitution.”

A Friday New York Times essay, titled “The Constitution Is Broken and Should Not Be Reclaimed,” and penned by law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale, claims when liberals “lose in the Supreme Court” they often blame justices for misreading the Constitution, yet in reality, “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 authors assert, as they attack the “some centuries-old text.”

When liberals lose in the Supreme Court they usually say that the justices got the Constitution wrong. That’s a dead end, say @samuelmoyn and @rddoerfler. https://t.co/oJeWhXM4C5

— New York Times Opinion (@nytopinion) August 19, 2022

The essay also claims that constitutions, and “especially the broken one we have now,” direct us to the past, something that “aids the right” which tends to stick “with what it claims to be the original meaning of the past.”

Though liberals have attempted to “reclaim” the Constitution for half a century, the essay claims they have “agonizingly little to show for it” while calling to “radically alter the basic rules of the game.”

The authors also criticize progressives for attempts to “regain ownership of our founding charter,” mistakenly attributing the problem to the Supreme Court’s “hijacking” of the Constitution rather than the charter itself. 

“[E]ven when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism,” they write.

Calling the current Constitution “inadequate” and “famously undemocratic,” the authors wonder why progressives bother to “justify our politics by the Constitution or by calls for some renovated constitutional tradition.”

“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,” they add.

Accusing “constitutionalism” of “leaving democracy hostage to constraints that are harder to change than the rest of the legal order,” the essay argues the way to seek “real freedom” will be a “new way of fighting within American democracy” with a “more open politics of altering our fundamental law,” suggesting that the Constitution be made “more amendable” than it currently is.

“One way to get to this more democratic world is to pack the Union with new states,” the authors write. “Doing so would allow Americans to then use the formal amendment process to alter the basic rules of [politics] and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.”

However, the authors state, Congress could “openly defy” the Constitution to “get to a more democratic order,” with the basic structure of government being “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,” they conclude.

The piece comes as many on the left continue to attack the epic founding governmental document.

Last month, a Rasmussen Reports survey revealed that most Democrats believe the U.S. Constitution is fundamentally “racist” and “sexist.”

According to the report:

Most of President Joe Biden’s strongest supporters are in favor of rewriting the Constitution. Among voters who Strongly Approve of Biden’s job performance as president, 54% at least somewhat agree that the Constitution “should be mostly or completely rewritten.” By contrast, among voters who Strongly Disapprove of Biden’s performance, just 10% agree that the Constitution should be rewritten and 81% Strongly Disagree with rewriting the Constitution.

Also last month, Georgetown University Law School Professor Rosa Brooks stated that Americans were “slaves” to the U.S. Constitution which was written by “a tiny group of white slave-owning men.”

In May, President Joe Biden, while pushing for more gun control, told reporters that “the Constitution, the Second Amendment was never absolute.”

In March, MSNBC panelist and The Nation‘s justice correspondent Elie Mystal called the Constitution “trash” written by the “captains of the slaving industry.”

 He also said the Founding Fathers were “racist, misogynist jerkfaces” and spoke of the importance of critiquing the origins of the Constitution, which he described as “not great” and often “working purposefully towards those not great outcomes.”

In 2020, University of Texas at Austin Constitutional Law Professor Richard Albert argued that the United States should revise the Constitution to remove “racist” and “gendered” language. 

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