“The Left hates the Constitution and constitutionalism,” I wrote in 2018. And there's a simple reason for this: “The Constitution is a conservative document.”
Contrary to what many think, “conservative” above only means that the document serves to maintain the status quo. It limits the changes that the government can bring about, and the constitution itself is difficult to change through the amendment process.
But those who are obsessed with “change” don't like this, and that's why they justify the “living document.” But in recent years, every now and then, those who hate the Constitution have openly raised their flags and demanded that this document be sent to re-education camps.
From woodwork
One of them is Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. Writing in the Los Angeles Times, Chemerinsky argues that much of America's political dysfunction can be blamed on the vision of the Founding Fathers. The solution? “We need to start thinking about writing a new constitution to create a more effective, democratic government,” he wrote.
Of course, many would suspect that when Chemerinsky says “effective,” he means “powerful,” and this reality would arguably lead to a “democratic” outcome: think of two lions and a lamb voting on what to have for dinner.
But such “democracy” is certainly a passion of the scholar — in fact, he's written a new book about it called “No Democracy Lasts Forever: The Constitutional Threat to the United States.”
Who is the real threat?
Chemerinsky argues that “American democracy is in serious trouble” (in reality, the republic is in even more serious trouble). For example, he points out that:
Public trust in government has fallen from a high of 77 percent in 1964 to 20 percent today. Only 4 percent of American adults say our political system is working “extremely or very well.” Congress's approval rating hovers around 16 percent. And one survey found that “29 percent of young Americans say democracy is not necessarily more preferable than other forms of government.”
But, as astute respondents to his article wonder, what do these realities have to do with the Constitution? Might historically low trust in government likely be explained by recent, historically egregious lies? A (very) short list: there was the Russia collusion hoax, the Hunter Biden laptop lie, the weaponization of intelligence, the Covid deception, the claim that Joe Biden is smart, and the Department of Labor's fake jobs statistics.
Would you buy a second-hand story from this government?
A divided America
Chemerinsky also points out that polarization is a symptom of our dysfunction: 87% of Republicans approve of Trump's job performance, compared with just 6% of Democrats, he says. Biden's partisan divide is less stark, but still stark.
Certainly, America today is an ideologically divided country, but how would rewriting the document change this?
Our disagreements are not contrived or frivolous. We are not divided over ice cream flavors, but over fundamental issues. Examples of our debates: What is proper marriage and sexuality? What is the nature of sex itself (i.e. “transgenderism”)? Should we value equality or “fairness” (officially institutionalized discrimination)? When does human life begin, and is it sacred, or are humans just organic robots?
These differences cannot be eliminated by law, they can only give “one” enough power to crush the other and establish total domination, which seems to be Chemerinsky's real aim.
And he continues with his usual complaints about the problems with the Electoral College. For example, “the most populous state (California) is 68 times more populous than the least populous state (Wyoming),” he writes. “This makes the Senate more undemocratic than it has ever been.” In the last Congress, “50 Democratic senators represented 42 million more people than 50 Republican senators.”
Chemerinsky also complains about filibusters, partisan redistricting, and the Supreme Court's promotion of the latter — in fact, he complains in his book about the Court's “excessive” influence — and his preferred “solution” is “a fresh start by passing a new constitution.”
Incorrect diagnosis and incorrect treatment
But in reality, almost everything he lists as a problem is either not a problem or not in the Constitution. For example, Chemerinsky is right about the Supreme Court's excessive power. But in reality, the judicial supremacy at issue is not recognized by the Constitution. Rather, it has been proclaimed by the Court itself, most notably in Marbury v. Madison (1803). The Court enjoys its power, but only because the other two branches of government tacitly agree to defer to it. This is our failure, not the Constitution's.
When it comes to the filibuster, redistricting and overall division, Chemerinsky seems concerned that they will hinder government action. But is this a bad thing?
More productive businesses mean more goods and services. More productive governments mean more anti-freedom laws, mandates, and regulations, more wasteful programs, and more confiscatory taxes.
Moreover, as economist Walter E. Williams said, the best thing a government can do for an economy is to “get out of the way.” So why promote the dark “productivity” of the state?
In other words, what is disparagingly called a “do-nothing Congress” is a good thing.
Moreover, what good could there possibly be from a “productive” central government? Consider also that virtually every “good thing” Chemerinsky wants can be accomplished at the state level, and that a small, largely inactive federal government is appropriate, since the federal government is an agent of the states, not their master.
What is the real purpose?
So why the insistence on giving the federal government more power? Maybe, as Chemerinsky argues, a new constitution is the only way a deeply divided America can avoid secession. But this is a bit like a marriage counselor warning a couple whose husband beats his wife every week that the only way to stop her from running away is for the man to take power and lock her in the house.
So there is another way to avoid secession: for the federal government to stop attacking conservative states (for example, by stopping trying to impose perverse “trans” Title IX mandates on the states). But Chemerinsky prefers to give abusers even more power.
But there is good news: with our country so divided, 37 countries (number of ratifications) will never agree to make Chemerinsky’s dream a nightmare. And yet, we should be grateful to him. Few countries have been more honest about their loathing for our republic and their desire to destroy it.
