We have been discussing a slew of books and interviews by academics denouncing the Constitution or individual rights as a threat to democracy. The latest is Brown University Political Science Professor Corey Brettschneider who is warning about the “dangers of the Constitution.”
It is all part of a counter-constitutional movement challenging the very documents that have protected freedoms for centuries. It is hardly a perfect record, but it has served the country and its citizens well.
Brettschneider explained to the Brown Daily Herald that the constitution is not only a danger to us all, but “the traditional checks and balances don’t work, and that impeachment and the Supreme Court have failed to check rogue presidents.”
He warned that “it could be that we’re at the moment where American democracy doesn’t survive.”
The reason appears in large part Trump.
Like many, Brettschneider brushes over the fact that the system has worked as designed, including after the Jan. 6th riot.
Notably, I agree with aspects of the book in highlighting the courageous struggle of dissenters in our history and the criticism of figures like John Adams, who is also criticized in my new book, “The Indispensable Right: Free Speech in an Age of Rage.”
Moreover, he is correct that abusive presidents have avoided impeachment and the Court has historically failed to protect individual rights. We both criticize those failures, particularly by the Court. Ultimately, however, the Court did embrace more robust views of individual rights and has repeatedly blocked the overreach of presidents.
Brettschneider describes what he calls “constitutional constituencies” in their struggle against such abuses.
“These constitutional constituencies, the citizens readers of the Constitution who played a critical role in defending and furthering our democracy, therefore disrupt a standard story told by constitutional law scholars and political scientists – experts who declare that checks on the president come mainly from Congress or the Supreme Court, or locate the foundation of our democracy with the writers of the Constitution in 1787.”
He adds “If history is any guide, today’s crisis makes this a time ripe for constitutional recovery. In that sense, this book offers hope for current citizens seeking to restore democracy.”
While the book is about historical abuses by presidents and the struggle against them, the book’s pitch pushes all of the anxiety buttons:
“Imagine an American president who imprisoned critics, promoted white supremacy, and sought to undermine the law to commit crimes without consequence.”
(The book addresses five prior presidents and the pitch does not make direct reference to Trump).
I have no objection to those who speak out against Trump or his conduct. That is part of a worthy national debate in this election year. However, more professors and pundits are suggesting that it is not just Trump but our Constitution that is threatening our democracy. While others have called the Constitution “trash” in their books, Brettschneider is a bit more circumspect in his interview and reportedly calls the Constitution a “dangerous document.”
The remarks of Professor Brettschneider is part of a growing library of books and interviews attacking the Constitution. As discussed earlier, law professors have led this effort. For example, in a New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism.”
Other professors have called for amending the First Amendment and have attacked free speech as a danger.
The United States Constitution is the oldest and most successful Constitution in history. It has survived crises that have destroyed other nations. Yet, we are a people who have not experienced true tyranny. We can lose our appreciation for how fortunate we are to have this system and the stability that it has afforded this country.
In challenging constitutional values like the system of checks and balances, these academics are seeking to strip away the very elements that have forced compromise and moderation throughout our history. It is the very genius of James Madison that allowed the most pluralistic nation on Earth to govern as one.
The post-constitutional world that some professors describe is no doubt attractive to many. It promises more immediate gains from raw political power. However, it would endanger all rights by reducing the guardrails that have served us so well for centuries.
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Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).