The Radicals Propose a Supreme Court Fix — Popular Constitutionalism

The radical left is in a blind rage over rulings from the new Thomas Supreme Court. It was bad enough when the Supremes told them they didn’t have a constitutional right to kill their babies, but now it’s telling them they can’t be racists either. The court is clearly intent on imposing tyranny and eliminating our most basic rights – which are not actually written in the Constitution, but have been emanating from a penumbra that only liberal justices can see for 50 years. They’re screaming that something must be done about this Constitutional crisis.

They tried to eliminate the Senate filibuster to pack the court two of years ago. But that didn’t work because a couple of Dems learned a lesson from Harry Reid’s leadership and realized there may be a few unintended consequences they wouldn’t like.

So, the radicals put their thinking caps on and came up with a creative solution. Just tell President Gremlin to ignore the court. Joe being Joe, he might actually do it.

Professors Mark Tushnet (Harvard Law) and Aaron Belkin (San Francisco State University, Political Science) sent an open letter to the Biden administration.

…urging that it endorse and take steps to implement popular constitutionalism as a response to what the President has described as “not a normal” Supreme Court.

They rationalize that extra-constitutional measures are necessary because:

… the threat that MAGA justices pose is so extreme that reforms that do not require Congressional approval are needed at this time, and advocates and experts should encourage President Biden to take immediate action to limit the damage.

There’s surely a MAGA emergency loophole in the Constitution somewhere – if Merrick Garland would just look hard enough.

Their advice?

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation.

Just ignore the court – simple, elegant, and radical leftist level stupid. Problem solved. But they assure us such an expansion of presidential authority can’t possibly lead to tyranny, because the President is answerable to the electorate every 4 years. If the majority doesn’t like his interpretation, they can vote him out. However, if the majority of Americans agree with him, his interpretation remains actionable by implied concurrence from the electorate’s vote. These two teachers of higher education are apparently oblivious to the flaw in their recommendation. Popular constitutionalism will inevitably undermine individual rights.

What the good professors are recommending sounds dangerously like pure democracy – where right/wrong and legal/illegal, are whatever the majority says it is. They’re advancing the notion that the President can act according to whatever he says the Constitution means, and if 51 percent of the electorate agrees with him, his interpretation is validated. The mob legitimizes his logic.

Ben Franklin famously said that, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” Popular constitutionalism would allow the President to “interpret” that the two wolves have a right to vote on what to have for lunch. If the two wolves agree with him in the next election, he’ll get reelected and the lamb will have a very bad day.

The left will argue that no sane interpretation of the Constitution would ever reach such a radical conclusion. Sane or not, during the pandemic our leadership decided that the mega-corporation wolves had a right to devour the mom-and-pop shop lambs. Small businesses were shuttered for public safety, while the big-box stores were allowed to remain open. It happened because there is no limit to which an unrestrained executive may creatively interpret his constitutional powers.

Our government has been called many things:

• Democratic republic
• Constitutional republic
• Representative republic

Those descriptors recognize that we are a republic in which our government representatives are elected. But America has never been a pure democracy, for good reason. Our leaders are not sworn to advance the will of the majority. They are sworn to act in accordance with the Constitution. Our Constitution is the lamb’s defense against the lunch choice of the wolf pack. Our individual rights supersede majority wishes.

That’s why our Constitution can’t be changed by creative interpretation and majority concurrence – as popular constitutionalism would allow. It can only be amended through broad consensus. Minorities have a voice which cannot be ignored by the majority in the ratification process.

Where could popular constitutionalism take us? Could it lead to an interpretation that “justice” demands the creative legal targeting of domestic enemies – also known as the political opposition? Could Joe Biden “interpret” that 81 million Americans have directed him to crush the semi-fascist MAGA threat – using all means at his disposal?

Could popular constitutionalism lead to an interpretation that our personal liberties are subservient to communal priorities. Constitutional interpretation currently allows limitation of the arms we can legally bear – for public safety. Could the same interpretation be applied to our rights of religion, speech, and property – for the public good?

Could popular constitutionalism be used to interpret that neutering the electoral college is constitutional (as the National Popular Vote Interstate Compact is attempting)? If so, it would lead to restricting state’s rights – our last legal defense against advancing federal overreach.

Could there be any unintended consequences which professors Tushnet and Belkin aren’t anticipating? Let’s say Joe embraces their argument and uses it to continue discriminating on the basis of race, forgive student loans, and subvert property rights. But the voters aren’t keen on his “interpretation” and vote him out.

Joe would be out, but the popular constitutionalism precedent would have been set. What if the next Republican President really is as extreme as the left claims, and decides that he can act on his own constitutional interpretations? Could he “interpret” that all firearm restrictions are unconstitutional and order federal agencies to stop enforcing gun laws (except the ones prohibiting crack addicts from gunning up of course)? Could he “interpret” that late-term abortions are a violation of the “due process” rights of the unborn and use the DOJ to prosecute doctors who perform them – regardless of state laws?

If a future President were to make such interpretations, would Tushnet and Belkin still support popular constitutionalism? Or would they only support the notion if a Democrat occupies the Oval Office? Is their advocacy of popular constitutionalism principled or political?

Professor Tushnet is training our next generation of lawyers at one of the country’s most prestigious law schools. As a lawyer, he has sworn an oath to support the Constitution. Yet he is advising an Article II executive to usurp the powers of an Article III judiciary. I have two questions. Why isn’t Tushnet under investigation for disbarment? Should we be concerned about a legal profession which casts aside the principles of the Constitution in such a cavalier fashion?

This article appeared previously on American Thinker.

Author Bio: John Green is a political refugee from Minnesota, now residing in Idaho. He has written for American Thinker, and American Free News Network. He can be followed on Facebook or reached at greenjeg@gmail.com.

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