In a New York Times essay published earlier this month, professor Ryan Doerfler of Harvard Law School and professor Samuel Moyn of Yale Law School argued that the “real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.”
THE QUOTE
Under the headline, “The Constitution Is Broken and Should Not Be Reclaimed,” the legal scholars claimed the Constitution is an obstacle to establishing “real progress” — like liberalized abortion access and enshrining affirmative action into law — in American life.
- “Constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now,” they wrote. “This aids the right, which insists on sticking with what it claims to be the original meaning of the past.”
- “Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.”
- Doerfler and Moyn cited the Constitution’s alleged bias toward conservative — or, in their word, “reactionary” — causes as a justification for doing away with it: “It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. 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.”
Such changes would, in the eyes of the authors, usher in an era of “popular rule”: “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.”