The Patriot Post® · The Left's Latest Lie: 'Popular Constitutionalism'

Let’s call it the Left’s “Popular Constitutionalism” lie.

It’s actually a new twist on an old lie: the lie that the Constitution is a “living document” and is meant to be interpreted according to the needs and desires of the present moment rather than the original meaning of its authors.

In an open letter to whomever they think will read it, two hard-left, Trump-hating college professors — Harvard’s Mark Tushnet and San Francisco State’s Aaron Belkin — implore lame-duck President Joe Biden to ignore the Supreme Court and its rulings and interpret the Constitution in whatever way his increasingly brazen handlers so choose.

Doing so, warns Reason’s Ilya Somin, “would set a dangerous precedent likely to be abused by the right, as well as the left.”

“We urge President Biden to restrain MAGA justices immediately,” the two sore-losing leftists write in a 10-paragraph screed titled “An Open Letter to the Biden Administration on Popular Constitutionalism,” “by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.”

They continue:

We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. Although we continue to support expansion, 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.

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. If voters disagree with the President’s interpretation, they can express their views at the ballot box.

Ah, the ballot box. Voters tried to express their views at the ballot box in 2020, and they did so by awarding Donald Trump 12 million more votes than any Republican had ever before received. And yet he still lost by seven million votes 43,000 votes across three key battleground states due to bulk-mail ballots and the corrupt collusion of Big Tech, Big Media, the FBI, and our nation’s intelligence services.

What we have here, then, is yet another attempt by the Left to delegitimize the judiciary, to delegitimize our third coequal branch of government, to delegitimize our Supreme Court in the wake of a series of constitutional rulings at the close of its most recent term. Remember: Biden disgracefully dubbed this institution “not a normal court.”

In doing so, Tushnet and Belkin also reveal a certain nervous tic: They use the term “MAGA justices” a whopping nine times and the term “MAGA rulings” twice more in their relatively brief letter.

If we didn’t know better, we’d think these guys had something against red hats — something against rule of law, a roaring economy, a strong military, a color-blind society, a functioning southern border, and an America First foreign policy.

As the wacky missive reads: “Such actions [as ignoring the Supreme Court’s rulings] could help contain the grave threat posed by MAGA justices. For example, President Biden could declare that the Court’s recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court’s interpretation of the Constitution is egregiously wrong.”

Affirmative action is nothing more than race-based discrimination, and our Supreme Court has rightly declared it unconstitutional. We wonder: What part of the Constitution’s 14th Amendment guarantee of equal protection under the law do these guys not get? And as for “Popular Constitutionalism,” don’t they know that affirmative action is very unpopular according to recent polling?

Sadly, but not surprisingly, this isn’t their first rodeo. As the nutty professors noted in their letter, they’ve been at this for five years. As Fox News reported back in 2018: “Less than a month after the confirmation of Associate Justice Brett Kavanaugh entrenched a 5-4 conservative majority on the Supreme Court, leading law professors are urging Democrats to expand the size of all of the nation’s federal courts and pack them with liberals. Harvard professors Mark Tushnet and Laurence Tribe are lending their support to the so-called ‘1.20.21 Project,’ which was launched by political science professor Aaron Belkin … to counter ‘Republican obstruction, theft and procedural abuse’ of the federal judiciary.”

Perhaps suspecting that neither ignoring the Supreme Court nor trying to pack it with leftist judges is achievable, the two professors appeal to other nations for an example of how our system of checks and balances should work.

“Notably,” they write, “other healthy and robust democracies do not allow courts to play an exclusive role in constitutional interpretation but promote dialogues among the branches in which legislatures or chief executives respond to judicial interpretations by offering their own competing interpretations.”

It’s a republic, not a democracy. And since when does the United States take its cue from “other healthy and robust” countries?

Since never. That’s when.

As constitutional scholar Jonathan Turley rightly argues, judicial finality “has been essential to the stability of our system for generations. … Respect for the court is in our DNA. No matter our disagreements with a given decision, Americans will not tolerate defiance of the institution and the rule of law.”

These professors, Turley writes, “remain the privileged elite of academia, declaring their values as transcending both constitutional and democratic processes.”

And yet they persist. “It is not hard to imagine that a President Trump or DeSantis would circumvent or ignore rulings issued by a liberal Supreme Court,” the two professors ultimately argue. Thus, their rationale for ignoring the Supreme Court is a hypothetical in which a Republican president would refuse to abide by its rulings if only the court were liberal rather than conservative.

They’d do it, too!

Only in academia, and only on the Left, could there be such an utter lack of self-awareness.