Others have used the term “post-constitutional” to describe the current era in which we live. Most of us remember a time not long ago when the Constitution and the Rule of Law weren’t under open attack by so many institutions.
What do I mean by post-constitutional? There are couple of characteristics.
Law is used by those in power – often bureaucrats – to advance their ideological views through their power. Law is no longer a fixed, largely agreed upon principle. Instead it is becoming something elastic, subjective, defined by the latest best argument cooked up at Harvard Law School or Yale.
In the good old days, law was the great leveler. We could all agree on the basics. Everybody essentially agreed that election law, my field, was designed to ensure the integrity of the process.
If we learned that large number of noncitizens, aliens, for example, were registering to vote – something I’ll discuss shortly – then all sides, Democrat, independent and Republican, would look for fixes. Nobody would cook up excuses to defend the practice, excuse the practice or preserve alien voting. It would be confronted and fixed.
But now, law professors and the academy view law as a means to keep and enhance power.
Law schools and law professors sometimes seem busier dismantling the Constitution because of their dislike of it and the people who wrote it, than they are teaching what it actually says. After all, why teach what it actually says when you aim to replace it?
Do I overstate the case? Is this fanciful? Is it a conspiratorial fantasy that enemies of the Constitution are seeking to replace it and Machiavellian bureaucrats and lawyers manipulate the law to achieve partisan ends?
In 2010 when I left the Justice Department, I thought such a claim might have been hard to swallow. But the perpetrators of these views have obliged us by being very explicit in the last few years.
Enemies of the Constitution are now hiding in plain sight. Let me briefly note two examples (there are many, many others).
Who can forget the editorial by Georgetown Law Professor Louis Seidman in the New York Times called “Let’s Give Up on the Constitution.” After all, as he put it, “a group of white propertied men who have been dead for two centuries and knew nothing of our present situation and thought it was ok to own slaves disagreed” with what progressives want to do. This is in the New York Times by a Georgetown Law professor.
Then, getting closer to my area of expertise – election law – there was a law review article in the Stanford Law and Policy Review by an election law professor — University of Michigan’s Ellen D. Katz — “Democrats at DOJ: Why Partisan Use of the Voting Rights Act Might Not Be So Bad After All.”
When I say they hide in plain sight, these are the things I mean. There are many more examples of outright hostility to the Constitution becoming mainstream.
These are threats to our Constitutional order against which, I will submit, our old means of defense are largely ineffective.
We have entered a new battlespace between left and right. No longer do we have gentle disagreements about public policy. Instead, the Left has sought to criminalize many disagreements, has weaponized the law to attack their foes – both personally and substantively – and is pouring hundreds of millions of dollars into a multi-front war to transform the remaining institutions that they have not already transformed. They seek to silence their opposition.
I am afraid that the scholarly voice is no longer an effective rebuttal – and hence I believe you can explain one reason why President Trump was elected. The American public, who believe in the Constitution, who believe in the Rule of Law, saw it under attack from so many places.
Let me turn to a few examples where this is happening in my own field of expertise: election law.
The transformative Left understands that process drives policy.
Process means the rules, the boring things, if you will. Conservatives are focused on ideas, policies, reasoned debate. Naturally so, as they care about the issues. Whereas the left is spending hundreds of millions of dollars to destroy your policies through the transformation of process.
What are example of process issues in election law?
I mean the rules that govern elections. The rules that govern speech. Control over the institutions.
We have all heard of the fights about redistricting. That is one of the areas where the left is fighting over process rules, pouring tens of millions of dollars into redistricting fights. How they draw the lines makes a difference. Now, thankfully, there is more equilibrium between the two sides in redistricting fights — not entirely, but to some extent.
My organization, the Public Interest Legal Foundation, is involved in litigation all around the country where the Left is engaged in changing the process rules.
Consider Nevada. Nevada has, as some states do, a recall election provision. If someone wins an election, they can be recalled after a sufficient number of signatures are obtained seeking a recall. Three Nevada senators faced a recall petition. The lawfirm Perkins Coie filed a challenge to Nevada’s recall law under the Voting Rights Act, claiming any recall is discriminatory.
So how does this work? They say that if you have to go and vote in a recall election it discriminates against people who don’t speak English well – because they tend not to follow the news. That is a claim in the complaint. We helped defend the state of Nevada but ultimately the case was mooted because the petitioners did not get enough signatures.
Let me turn to citizenship verification issues. You will recall that the president made a statement about aliens participating in the election. We don’t know how many did because nobody has ever really looked at the issue.
All around the country there are defects in the Motor Voter registration system that are allowing noncitizens to participate in our elections. We have been litigating cases to get data. If we don’t know how many noncitizens are participating it’s probably because nobody has been asking. We started litigating to get some data.
We found documents in this litigation showing noncitizens are registering to vote through a broken Motor Voter registration system.
In the old day, everybody would agree: let’s fix this problem. Democrats, independents, and Republicans would all agree. There is litigation around the country in multiple federal courts fighting to preserve these defects. Cases brought by Common Cause, the ACLU, and the League of Women Voters are seeking to preserve these defects.
We are involved in a case in the federal court in the District of Columbia after the federal government approved a change to the federal voter registration form allowing Kansas, Georgia and Alabama to implement state citizenship verification rules. The League of Women Voters sued to stop it. That case is still going on.
Most of you have heard about voter ID, and that is another process fight you may be familiar with. I was at the Civil Rights Division at the Justice Department long enough to clue you in on why voter ID is so strongly opposed.
Most folks I speak with rightfully note that you need photo identification to do almost everything: get on a plane, buy alcohol, and to get married. And getting married is a fundamental right.
The dirty little secret why voter ID foes oppose voter ID is that they believe that their political constituency will be more likely to lose it or forget it. They believe if there is a voter ID law, too many people will misplace their ID or lose it and it will hurt their electoral prospects.
They say they oppose voter ID because it is difficult to obtain. The truth is that they oppose it because they worry their voters will misplace or forget it. They just don’t frame it that way.
You can see this manifest in places like North Carolina and Texas where litigation sought to reverse changes to voter ID laws and early voting rules. The United States hired an expert who testified that blacks are less sophisticated.
Identity politics is the jet fuel driving this. At its core, identity politics is essentially a collectivist and dehumanizing view that says you are part of a racial group and you have to behave like that racial group.
I wrote a piece in the Washington Times criticizing moves toward early voting. Remember the olden days where elections were actually on election day? Now of course we have early voting, and in some states it almost starts at the end of September.
Remember the 2000 election when we had that weekend bombshell about George W. Bush? Early voting does not allow for a fully informed electorate. People who vote before election day don’t know all the facts. The Left criticizes opposition of early voting expansion as some sort of racist plot. But something else is at play.
Conservatives and Republicans do not view politics as an expression of collectivist will. They view voting as a contemplative, rational and reflective exercise.
In contrast, the Left views the vote as a muscular collectivist expression by interest groups. The vote, to them, is simply effectuating the assumptions about how people should behave as part of a group. It’s not a contemplative choice, but a reflection of innate political instincts.
We are dealing with a movement that is attempting to transform the country through a dehumanizing collectivist approach. They are attempting to transform the country through changing process rules like same day registration, early voting, voter ID, and residency rules.
You transform a country by transforming the process rules.
This article was based on a presentation given by the author at the Bradley Foundation Symposium held at the Heritage Foundation. The video of the event is here.