A New York Times guest essay argued that liberals need to stop caring about the "broken" Constitution and instead find others roads to enact policy, or perhaps make the world’s longest surviving charter more "amendable."
According to Dr. Ryan D. Doerfler and Dr. Samuel Moyn, the solution is not to "reclaim" the Constitution from Republicans, but rather reclaim America from constitutionalism. Constitutions, the authors argued, reorient our country to the past and "misdirect in the present," causing disputes over interpretations of what people believed centuries ago, and not on what the "present and future demand." The authors asserted the Constitution is "inadequate," serving only to benefit "reactionaries."
"Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection," Doerfler and Moyn wrote.
The pair admitted that it’s difficult to find a constitutional basis for labor unions or abortion in a document "written largely by affluent men more than two centuries ago." Therefore, the New York Times guest essayists pushed forward the idea that liberal legislators should instead tackle the issue on their merits, without bothering to invoke the Constitution. They added that leaving democracy "hostage" to the Constitution is challenging, and demands extraordinary consensus in order to achieve "meaningful progress."
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"It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now," Doerfler and Moyn continued.
Another way to make America more democratic, according to the essayists, is to pack the country with more states.
"Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country," the essayists wrote.
The piece also suggested that Congress could just pass an act that reorganized the legislature to more "fairly" represent where people vote and live. Perhaps, the Senate could even be reduced to a "council of revisions" without the power to "obstruct laws," Doerfler and Moyn hypothesized.
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"In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review," they admitted.
This solution would ensure that "basic structures of government" such as whether to elect the president by majority vote, or whether to limit judges to fixed terms, could be decided by the current electorate, rather than words from a "foggy past."
Democratic politicians and members of left-leaning news organizations have repeatedly criticized the Constitution in recent years.
In May, a New York Times columnist deemed originalists "dangerous," and claimed that the Supreme Court is an "instrument of oppression."
The Nation magazine correspondent Elie Mystal argued in March that the Constitution was drafted by a "bunch of rich, white politicians making deals with each other," owned slaves, and didn’t allow non-White people to have a voice. At the time, Mystal doubled down on his claim that the Constitution is "actually trash," a comment he previously made on ABC News’ "The View."
