Playing to type, Harvard and Yale law professors have taken to the pages of The New York Times to say that we should trash the Constitution. Ryan Doerfler and Samuel Moyn (of Harvard and Yale, respectively) expressed their frustration that the U.S. Supreme Court follows the Constitution’s written text. They would prefer, it seems, an unwritten constitution, like the English have, that would make Congress all-powerful.
What room does this leave for the states to govern themselves? They don’t say, but the necessary answer is not much. One suspects that the good professors don’t like governments situated closer to the people than Washington. There are, after all, red states that will do things the professors don’t like if given free rein from the federal bureaucracy. Heaven forbid, they might even decide that boys are boys, girls are girls, and ideological indoctrination isn’t education.
The professors’ criticism of the Constitution is one that is, by now, a cliché on the political left: It is “undemocratic.” (We confess to being surprised that they didn’t say it was also “fascist” and “racist,” but perhaps those essays are in the works.) And yet, the professors seem to fear true democracy. They want to unshackle Congress from the restraining influence of judicial review, but that isn’t the most democratic option on the table.
They could, instead, call for a new Constitutional Convention to replace ours with a new one that gives Congress the sort of ultimate power that the British Parliament has. But the professors don’t. Why not? Perhaps because they know that they can’t persuade the states to go along with it. It’s difficult to wield power when that power is diffused among 50 states and the federal government. So, the professors’ new system would work only if a new unwritten constitution vested all power in only one body, Congress.
One wonders how an unwritten constitution could vest governing power in anything. The 13 original states were independent sovereigns since the Articles of Confederation required unanimity for the Continental Congress to act. Under the Equal Footing Doctrine, states 14-50 entered on the same terms as the original 13. Take away our Constitution, and you have 50 separate sovereigns (with no District of Columbia), not one all-powerful Congress. But let’s move on.
They assume that progressives would also control that new Congress, but would they? The Republican Party recaptured the Senate in 1981, both chambers in 1995 and 2011, and both chambers and the White House in 2017. One wonders what tune the professors would sing if, having made Congress all-powerful, conservatives then came to dominate it. Would they still call it democratic? Were that to happen, we predict that the left would fall head-over-heels back in love with John Locke and Montesquieu.
But let’s say the professors’ endeavor is successful, and Congress gains ultimate power and responsibility over the whole country. What would that look like? The federal government would need to get larger, of course. Its employees already outnumber the populations of half the countries on Earth, and they don’t have to deal with zoning laws; DMV services; local police, fire and sanitation protection; or any of the myriad chores handled by state and local governments.
Do you think the Constitution is undemocratic? Have you ever tried to get the federal bureaucracy to change an error on a form or return improperly confiscated property?
The professors’ timing couldn’t have been worse. Just two days before the Times published their essay, it published a story in which Rochelle Walensky, the CDC director, admitted that her agency made huge mistakes in addressing the COVID-19 pandemic. If an agency staffed by physicians and Ph.D.s can’t be trusted to get the “science” right, how much trust should we put in the ability of less highly educated bureaucrats to do so?
No matter, say the professors, “real freedom” (tellingly, they hyperlink that phrase to an article about how socialism is the way of the future; perhaps they thought that no one would look) demands a more powerful government, further removed from the people, and with fewer protections for minority (read: conservatives and property) rights.
We’re skeptical. But perhaps we’ve just grown desensitized. After all, liberal law professors have been writing some version of this same op-ed over and over for longer than we or Mr. Doerfler and Mr. Moyn have been alive. Perhaps The New York Times has forgotten that or thinks that the rest of us have. But bad advice, like bad news, doesn’t improve with age.
This piece originally appeared in The Washington Times