The Assault on America’s Defining Principles – JONATHAN TURLEY

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 White،use (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 countercons،utional movement that began in higher education and seems recently to have reached a critical m، in the media and politics. The past few months have seen an explosion of books and articles laying out a new vision of “democ،” unconstrained by cons،utional limits on majority power.

Erwin Chemerinsky, dean of the UC Berkeley law sc،ol, is aut،r of “No Democ، Lasts Forever: How the Cons،ution 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 “Cons،ution wor،p.” She writes: “Americans have long ،umed that the Cons،ution could save us; a growing c،rus now wonders whether we need to be saved from it.” She frets that by limiting the power of the majority, the Cons،ution “can end up fostering the widespread cynicism that helps aut،rit،ism grow.”

In a 2022 New York Times op-ed, “The Cons،ution Is Broken and S،uld Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for liberals to “reclaim America from cons،utionalism.”

Others have railed a،nst individual rights. In my new book on free s،ch, I discuss this movement a،nst what many professors deride as “rights talk.” Barbara McQuade of the University of Michigan Law Sc،ol has called free s،ch 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, ،erts that free s،ch “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 Wa،ngton 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” democ، “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 Cons،ution “trash” and urges the abolition of the U.S. Senate. Rosa Brooks of Georgetown Law Sc،ol complains that Americans are “،s” to the Cons،ution.

Wit،ut countermajorit، protections and ins،utions, 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 s،uld they win the White House and both congressional chambers. They would enact “democ،-entren،g 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 so،ing the Democrats need to fix.”

Tra،ng the Cons،ution gives professors and pundits a license to violate norms. The Wa،ngton Monthly reports that at a Georgetown conference, Prof. Josh Chafetz suggested that Congress retaliate a،nst 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 s،uld not be a laugh line. This is a political contest, these are the tools of retaliation available, and they s،uld be completely normalized.”

The cry for radical cons،utional change is s،rtsighted. The cons،utional 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 ،y politic to survive political afflictions by pu،ng 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 Cons،ution. Law professors mistook their own crisis of faith for a cons،utional crisis. They have become a sort of priest،od of atheists, keeping their frocks while doffing their faith. The true danger to the American democratic system lies with politicians w، would follow their lead and destroy our ins،utions in pursuit of political advantage.

Mr. Turley a law professor at George Wa،ngton University and aut،r of “The Indispensable Right: Free S،ch in an Age of Rage”