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The Left Transforms America by Transforming the Rules

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."