The Progressive Flight from Law and the Constitution

T he legal academy is abuzz over U.S. Circuit Judge James Ho’s decision to boycott clerks from Yale Law School. Judge Ho’s decision came in response to what he saw as a troubling pattern at Yale of disrespecting and disrupting speakers arguing from conservative viewpoints.

Whatever one thinks of the position taken by Judge Ho, something feels different as a new school year and new Supreme Court term get underway. And it’s troubling.

How did we get here? Not long ago, progressives and conservatives disagreed about case outcomes, but both sides still embraced constitutional values. Over time, however, progressives distanced themselves from certain parts of the Constitution. Then, they began questioning the legitimacy of the Supreme Court. Now, some call for us to scrap the Constitution altogether.

Several weeks ago, Harvard Law professor Ryan Doerfler and Yale Law professor Samuel Moyn argued in the New York Times that progressives should “reclaim America from constitutionalism” by “radically alter[ing] the basic rules of the game.” They envision an America where progressive majorities bestow and retract rights democratically “without having to bother with the Constitution.”

This progressive reaction is telling. Not long ago, conservatives felt forsaken by the Court. Their response? Embrace the Constitution. Today, progressives foresee a challenging season. Their response? Discard the Constitution, dismantle the Court, and disrespect those who disagree. (Thankfully, not all on the left take this approach, but it’s becoming distressingly common in the legal academy.)

We should pause to consider whether what is being taught in law schools has contributed to the dysfunction. A law professor arguing that it would be better to make law “without having to bother with the Constitution” is like a banker lamenting it would be easier to store valuables without bothering with the vault.

Professors who make such arguments overlook something fundamental. The government does not grant rights. Government guarantees rights — rights that are unalienable and come from the very nature of what it means to be human.

Despite the doubts of progressive academics who think they know better, human nature is stubbornly unchanging. Humans are flawed, self-interested, and power-seeking. So too, are their governments. John Adams observed, “It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy.” Or, as Tocqueville asked, “Have men, by gathering together, changed character? . . . As for me, I cannot believe it; and the power to do everything that I refuse to any one of my fellows, I will never grant to several.” Oppression can emerge from any form of government — democracy included.

That’s why the Constitution hardwires liberty-preserving features into the structure of the American government. It divides power within and among the three branches of the federal government and then again between federal and state governments. It “imposes” institutions like the Senate and Electoral College on our national government. In so doing, it restrains the pace of government and bogs things down. It sometimes frustrates majority rule — even things that professors in their ivory towers tell us are good ideas. That’s the point.

Progressive academics love to criticize the Court’s reliance on history and tradition. “Trust us,” they tell their students, “we know better than the wisdom of the ages.” For example, professors Doerfler and Moyn accuse the Constitution of distracting us from “what the present and future demand for and from those who live now.”

But history counsels caution when democratic majorities are asserted as a basis for power. Some of us can still remember the election of Haitian president François Duvalier in the 1960s. While his term was to expire and the Haitian constitution prohibited reelection, Duvalier announced a presidential referendum in which he was the only candidate and received over a million votes supporting him. There were zero votes in opposition. Duvalier is said to have asserted, “I accept the people’s will. As a revolutionary, I have no right to disregard the will of the people.”

Our Constitution safeguards liberty and ensures we are ruled by laws, not men. Indeed, generations of progressives and conservatives in the federal government have long shared a commitment that transcended both time and politics.  Their oaths bound them to preserve, protect, and defend our Constitution.

But now, that might all be changing. If Abraham Lincoln was right in his warning that “the philosophy of the schoolroom in one generation is the philosophy of the government in the next,” then we should be worried. Today’s students might well not be willing to take the same oath when it is their turn to govern.

Brad Lingo is the dean of the Regent University School of Law. John Ashcroft served as the 79^th U.S. attorney general and is a distinguished professor at Regent University School of Law.