These overeducated morons don’t seem to realize that this is a two way street, that can turn into a two way range.<\/p>\n
Tyranny of the minority: Liberal law profs urge Biden to defy the courts and the public<\/a><\/p>\n \u201cI shall resist any illegal federal court order<\/a>.\u201d<\/p>\n When \u201cthe Court\u2019s interpretation of the Constitution is egregiously wrong,\u201d the president should refuse to follow it.<\/p>\n Those two statements were made roughly 60 years apart. The first is from segregationist Alabama Gov.\u00a0George Wallace\u00a0<\/a><\/span>(D). The second was made by two liberal professors this month.<\/p>\n In one of the most chilling developments in our history, the left has come to embrace the authoritarian language and logic of segregationists in calling for defiance and radical measures against the Supreme Court.<\/p>\n In a recent\u00a0open letter,<\/a>\u00a0Harvard law professor Mark Tushnet and San Francisco State University political scientist\u00a0Aaron Belkin\u00a0<\/a><\/span>called upon President\u00a0Joe Biden\u00a0<\/a><\/span>to defy rulings of the Supreme Court that he considers \u201cmistaken\u201d in the name of \u201cpopular constitutionalism.\u201d Thus, in light of the court\u2019s bar on the use of race in college admissions, they argue that Biden should just continue to follow his own constitutional interpretation.<\/p>\n The use of the affirmative action case is ironic, since\u00a0polls have consistently shown<\/a>\u00a0that\u00a0the majority of the public\u00a0does not support the use of race in college admissions. Indeed, even in the most liberal states, such as California,\u00a0voters have repeatedly rejected<\/a>\u00a0affirmative action in college admissions. Polls further show that a majority support the Supreme Court\u2019s recent decisions.<\/p>\n So despite referenda and polls showing majority support for barring race in admissions, academics are pushing to\u00a0impose their own values, regardless of the views of the public or of the courts.<\/p>\n However, even if these measures were popular, it would not make them right.\u00a0It is precisely what segregationists such as Sen. James Eastland\u00a0(D-Miss.)\u00a0argued<\/a>, that \u201call the people of the South are in favor of segregation. And Supreme Court or no Supreme Court, we are going to maintain segregated schools.\u201d<\/p>\n Tushnet and Belkin cite with approval Biden\u2019s declaration that this is \u201cnot a normal Supreme Court.\u201d Biden\u2019s view of normalcy appears to be a court that agrees with his fluid view of constitutional law, by which he can forgive\u00a0roughly a half of trillion dollars in loans\u00a0or\u00a0impose a national eviction moratorium\u00a0without a vote of Congress.<\/p>\n Tushnet and Belkin know their audience.\u00a0Biden has previously evinced little respect for the Constitution or the courts. Take the eviction case. In an\u00a0earlier decision<\/a>, a majority of justices had declared that Biden\u2019s actions were unconstitutional, confirming what many of us had said for months.<\/p>\n Even after the majority declared it unconstitutional, Biden wanted to reissue the national moratorium. White House counsel and most scholars told him the move would be blatantly unconstitutional and defy the express ruling of the court. Instead, he consulted\u00a0the only law professor willing to tell him what he wanted to hear<\/a> and did it anyway. It was quickly again declared unconstitutional.<\/p>\n Other commentators and academics have gone from\u00a0implied to open contempt for our\u00a0constitutional norms.<\/p>\n Georgetown University Law School Professor Rosa Brooks<\/a>\u00a0was celebrated for her appearance on MSNBC\u2019s \u201cThe ReidOut\u201d after declaring that Americans are\u00a0\u201cslaves\u201d to the U.S. Constitution<\/a>\u00a0and that the Constitution itself is now the problem for the country.<\/p>\n MSNBC commentator Elie Mystal called the U.S. Constitution \u201ctrash\u201d and argued that we should simply just dump it.<\/p>\n Rep. Alexandria Ocasio-Cortez (D-N.Y.) has\u00a0questioned the need for a Supreme Court<\/a>.<\/p>\n In a New York Times column,\u00a0\u201cThe Constitution Is Broken and Should Not Be Reclaimed,\u201d<\/a>\u00a0law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be \u201cradically altered\u201d to \u201creclaim America from constitutionalism.\u201d<\/p>\n So the danger is now \u201cconstitutionalism,\u201d as opposed to what Tushnet and Belkin call \u201cpopular constitutionalism.\u201d<\/p>\n Many have called for the court to be packed with liberal appointees to bring it back to what Biden views as \u201cnormal.\u201d Some of these calls before Biden\u2019s Supreme Court commission echoed the same views as Tushnet and Belkin. Indeed, they cite Harvard professor Nikolas Bowie, who rejected the notion that \u201cthe constitutional interpretation held by a majority of Supreme Court justices should be \u2018superior\u2019 to the interpretations held by majorities of the other branches.\u201d<\/p>\n The Framers saw the Supreme Court as playing a counter-majoritarian role when it is necessary to protect individual rights and constitutional norms. The alternative is what the Framers viewed as a tyranny of the majority, where popularity rather than principle prevails.\u00a0For that reason, the Court has often stood with the least popular in our society and, since Marbury v. Madison, has had the final word on what the Constitution means.<\/p>\n Justice Robert Jackson once observed that he and his colleagues \u201care not final because we are infallible, we are infallible because we are final.\u201d<\/p>\n That finality has been essential to the stability of our system for generations. While presidents such as Andrew Jackson taunted the court for its inability to enforce its rulings without an army, it has never needed one. 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. That is why, despite the support for court packing by many law professors (including Tushnet, Belkin and Bowie),\u00a0the public remains staunchly opposed to it<\/a>.<\/p>\n What is most striking about these professors is how they continue to claim they are defenders of democracy, yet seek to use unilateral executive authority to defy the courts and, in cases like the tuition forgiveness and affirmative action, the majority of the public. They remain the privileged elite of academia, declaring their values as transcending both constitutional and democratic processes.<\/p>\n The problem is indeed \u201cconstitutionalism,\u201d and their view of \u201cpopular constitutionalism\u201d is a euphemism for \u201cpopular justice<\/a>.\u201d<\/p>\n Tushnet and Belkin show the release that comes with rejecting constitutionalism. They declare that it is not enough merely to pack the court: \u201cThe 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.\u201d<\/p>\n In other words, they are calling for Biden to declare himself the final arbiter of what the Constitution means and to exercise unilateral executive power without congressional approval. He is to become a government unto himself.<\/p>\n