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

Jonathan Turley ^ | September 25, 2024 | Jonathan Turley

[george76]

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 counterconstitutional 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 countermajoritarian 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.

[kiryandil]

Why I’m a Declarationist.

[Dead Corpse]

Democrats and RINO’s...

[eyeamok]

Everyone of these professors should be sent to Afghanistan for a Year so they can come back and report on living in a Country with NO Constitutional Guidelines and Principles.

[nathanbedford]

Without countermajoritarian protections and institutions, politics would be reduced to raw power.

Assuming as I do that Trump will win the election we must nevertheless contemplate the likelihood that he will inherit a very difficult economic situation that inevitably must include severe hardship for millions of Americans.

If hard cases make bad laws, hard times lead to politics being reduced to raw power. That America may be embarking, despite all Trump's magic, into an era of hard times means that the siren call to overcome counter majority are in protections and institutions in the name of bread for everyone will be very, very difficult to withstand.

[Tench_Coxe]

Subtext respinse to those professors: You forget that that that social contract also protects YOU. If you succeed in destroying that, God help you.

[Jim Noble]

Why I’m a Declarationist.

I am, too.

Fetishizing the Constitution is a serious error, as it has been turned into a hammer to beat the people.

"Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

[libertylover]

Great article.

[Scott from the Left Coast]

The context may be economic crisis (even economic warfare…see BRICS movement) and individual rights on a broader scale…but the real internal war coming can be more succinctly called The Rise of the Perverts.

The election of Trump may stall the Slouching Towards Gomorrah, but it may also be the spark that makes the powder keg we’ve become go off. If that occurs, the result will overwhelm all economic medicine.

[Lurker]

“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.”

I don’t think he’s thought this all the way through.

L

[Scott from the Left Coast]

“ Why I’m a Declarationist.”

The Declaration is the higher ideals - the culture (at its best), the creed.

The Constitution is the mortar of day of day functioning as a unified entity. Both are critical to a coherent nation, but the Declaration is your root core - your Genesis - that can apply to an entirely different entity, a different form of government.

[Qiviut]

Rescue the Republic event in DC tomorrow ....

https://jointheresistance.org/about-us/

What started as Defeat The Mandates, an historic idea to bring together the world’s leading COVID-19 dissidents in the early days of the vaccine mandates, and Rage Against The War Machine in the wake of the Ukrainian conflict, has now become today’s Rescue the Republic: Join The Resistance.

The same team of visionary leaders who organized and rose up to send the strong message of “We will not comply” are raising voices once again to protest the ongoing dismantling and destruction of Western values across the globe.

On Sunday, September 29th we will come together on the sacred grounds between the WWII Memorial and the Washington Monument to rally again and say with one voice:

“We will NOT COMPLY with tyranny! We will RESCUE THE REPUBLIC!”

This is our moment to defend and celebrate the values and principles that have made America and the West the freest, fairest and most productive society the world has ever known. At its heart the West is an agreement to distribute opportunity as widely as possible, and to allow the market to reward those who produce wealth from which we collectively benefit. Our civilization today is in grave danger and every single principle on which the West is based is under simultaneous threat. This moment demands radical change and requires liberals, conservatives, and independents of every color and creed to unify to rescue the West.

The West aims to level the playing field and distribute opportunity as widely as possible.

Today the West is in grave danger as every single principle upon which it is based is under simultaneous threat.

These principles include:
– Freedom of speech, assembly and religion
– Presumption of innocence
– The right to privacy
– The consent of the governed being the sole basis for governmental legitimacy
– Equal protection under the law
– A color-blind society
– Property rights
– The right to challenge evidence and confront witnesses
– The right to informed consent

Western values and democratic principles have been weakened, degraded and dismantled by expanding and increasingly entrenched industrial complexes, often led by radical ideologues.

Masquerading as the voice of the people, unholy alliances between big business, government and philanthropic organizations pose an existential threat to the West.

Military Industrial Complex
Vs.
War is always the last resort

Medical Industrial Complex
Vs.
Sanctify/recodify informed consent

Censorship Industrial Complex
Vs.
Banish state media control, surveillance

Immigration Industrial Complex
Vs.
Enact a rational border policy

Injustice Industrial Complex
Vs.
End Lawfare and abuse of the judicial system

Finance Industrial Complex
Vs.
Secure monetary freedom

Developmental Industrial Complex
Vs.
Restore family sovereignty

Academic Industrial Complex
Vs.
Return to truth-seeking and open dialogue

[Brian Griffin]

“Until Lukács showed up, classical Marxist theory was based solely on the economic changes needed to overthrow class conflict. Weil was enthused by Lukács’ cultural angle on Marxism.

“Weil’s interest led him to fund a new Marxist think tank—the Institute for Social Research. It would later come to be known as simply The Frankfurt School.”

“As fate would have it, the National Socialists came to power in Germany in 1933. It was a bad time and place to be a Jewish Marxist, as most of the school’s faculty was. So, the school moved to New York City, the bastion of Western culture at the time.”

“In 1934, the school was reborn at Columbia University.”

“The school published a lot of popular material. The first of these was Critical Theory.”

“The theory was simple: criticize every pillar of Western culture—family, democracy, common law, freedom of speech, and others. The hope was that these pillars would crumble under the pressure.”

“Next was a book Theodor Adorno co-authored, The Authoritarian Personality. It redefined traditional American views on gender roles and sexual mores as “prejudice.”

“Adorno and Horkheimer returned to Germany when WWII ended. Herbert Marcuse, another member of the school, stayed in America. In 1955, he published Eros and Civilization.”

“The book called for “polymorphous perversity,” a concept crafted by Freud. It posed the idea of sexual pleasure outside the traditional norms.”

“Marcuse would be the one to answer Horkheimer’s question from the 1930s: Who would replace the working class as the new vanguards of the Marxist revolution?

“Marcuse believed that it would be a victim coalition of minorities—blacks, women, and homosexuals.

“The social movements of the 1960s—black power, feminism, gay rights, sexual liberation—gave Marcuse a unique vehicle to release cultural Marxist ideas into the mainstream.”

“The Frankfurt School’s work has had a deep impact on American culture. It has recast the homogenous America of the 1950s into today’s divided, animosity-filled nation.

“In turn, this has contributed to the undeniable breakdown of the family unit, as well as identity politics, radical feminism, and racial polarization in America.”

https://christianobserver.net/how-the-frankfurt-school-changed-america/

pervert Marxism

[Qiviut]

Oops - Sunday, not tomorrow for Rescue the Republic. Park service is getting nervous & has changed the venue .... prayers for all attending & speakers that those behind the J6 persecutions don’t try the same here. There was a pipe bomb planted for J6, but because of how the chaos at the Capitol worked out, it wasn’t used ....

[ProgressingAmerica]

"Subtext respinse to those professors: You forget that that that social contract also protects YOU. If you succeed in destroying that, God help you."

They think they are above it all, and they have a point.

When a professor over a long period indoctrinates 11,000 students it is fair to say that this professor is going to vote 11,000 times on election day. The students are nothing but proxies, they don't know anything but what they've been spoon fed, and continually had reinforced by left wing dogma-media.

Compound this by however many of them there are around the country and you quickly realize there's safety in numbers. 3000 or 30,000 professors can easily add up to hundreds of thousands or millions of proxy votes in the ballot box on election day. The point the professors have, is their arrogance is actually (unfortunately) based on a fairly reasonable conclusion. When you control that many votes as these professors do, you do in fact have a safety in your position.

I'm just being a candid realist about it. Professors are immensely powerful. Sun Tzu would rap me across the head with a stone if I underestimated what the professors have.

As an aside, did anybody notice that the Tim Wu attacking the first amendment here is the same guy who gave us Net Neutrality? I'm sure very few people will put the ramifications of that together, here.

[No.6]

Yes. If/when Trump wins, and he takes office, the destructors have a whole litany of false flags, impeachments, obstructions, crises, and other events lined up to halt or even reverse what he and we want to accomplish in our Republic.

“Tell me something, it’s still ‘We the People,’ right?” — Dave Mustaine, 1986

[SauronOfMordor]

A Man for All Seasons - The Devil Speech

https://m.youtube.com/watch?v=PDBiLT3LASk

[Freee-dame]

God bless you all for going to Washington DC to demonstrate in support of the constitutional rights of Americans. Stay safe.

[Elsie]

I’ve read that... somewhere...

[ComputerGuy]

...This assault on the Constitution is being led by law professors...

Was old Billy right, or what?