The Constitution is No Longer Relevant…Neither is Constitutional Law

For much of the past two decades, I have been writing about serious, potentially fatal, defects in the Constitution, some inadvertent but most intentional, which left the nation vulnerable to tyranny. For the most part, I focused on the judiciary, which, because of a scantily written Article III, was allowed to become a largely unchecked third political branch of government (although the executive and the legislative could be corrupted as well). My first book on the subject, Dark Bargain, which came out in 2005, detailed the compromises the delegates at the Constitutional Convention were forced to make to convince reluctant slave states to agree to the new plan, which is part, but not all, of the reason that states remained so powerful and we ended up with minority government.

The reception to Dark Bargain was not wonderful. Most reviewers were dismissive and Publishers Weekly, the pre-eminent trade journal, delicately observed, “This is the type of thin and derivative book that gives popular history a bad name.” (For the record, with my very next book, Anatomy of Deception, which got a starred review, PW called me an “acclaimed popular historian.” A more recent reviewer was dismissive of my book about the suppression of African American voting rights, an award-winner as it turned out, noting that I had “failed to live up to the brilliant standard I had set with Dark Bargain.” And people wonder why writers drink.)

In 2008, I wrote The Activist, in which I detailed why judicial review, the Supreme Court’s power to declare a law unconstitutional, was not in the Constitution, nor was it intended to be, but rather had been created out of whole cloth by John Marshall in 1803 in Marbury v Madison. For that one, Jeff Rosen, now the head of the National Constitution Center, emailed, “I think it’s a wonderful job—provocative and counter-intuitive—everything a good book should be. I’m sure it will make a splash.” Nonetheless, he refused to either blurb or review it because he disagreed with my treatment of the venerated Marshall, nor as far as I know has it ever splashed into the NCC bookstore.

Three years after that, I published Inherently Unequal, an account of how the Supreme Court effectively rewrote the Fourteenth and Fifteenth Amendments to mean exactly the opposite of what they were supposed to mean and helped usher in Jim Crow. I was lambasted in the Washington Post for the line, “Constitutional Law is merely politics made incomprehensible to the common man.” I think events have proven that my description was more than a “soundbite,” as the reviewer called it.

I wrote other books on the Constitution’s spotty record as the protector of democracy in general and equal rights in particular, until, finally, last year, I put it all together with Imperfect Union, in which I examined the many errors of omission necessary to mollify the states, both North and South, and achieve ratification. The willingness to simply brush past problems many delegates clearly saw coming has, I argued, created far too accessible opportunities for an scrupulous person or party to destroy all the progress the nation has made in becoming the fair and equitable society those of good will envisioned. To be fair, I thought it a near impossibility that we had become so morally corrupt as to again elect Donald Trump and his band of bootlickers, and so, many of these omissions could have been filled by legislation.

The reason I’m telling you all this is not to cajole you into reading my books (although I obviously would not mind if you did) but rather to demonstrate how difficult it is to get even scholars and law professors—possibly especially scholars and law professors—to take a step back and look at the Constitution as it is and as it was, recognizing just how glaring are its weaknesses and how feeble are its defenses against an amoral opponent.

Now it is too late.

The Constitution has been blown apart, with whatever checks on uncontrolled power that did exist, weak though they may have been, now having the force equal to a parent forbidding a teenager to access social media. The ruling party has hijacked democracy, and the president, with the blessing of the Supreme Court, wields almost uncontrolled power as long as his or her actions are deemed “political,” a standard so loose as to be non-existent. “Equal protection of the laws,” once the vehicle to ensure that the marginalized and the powerless were treated with fairness and dignity has been contorted in such a way as to ensure they are not. Many groups that had won legal protections after decades and decades of effort may well see those protections totally stripped away, while the favored are given license to trample on their rights with impunity.

In short, the Constitution now means what Donald Trump, his congressional enablers, and a willing Supreme Court want it to mean, and what they want it to mean does not bode well for what used to be called the “American Ideal.”

And with the Constitution goes Constitutional Law. What is the point of parsing decisions, pretending that precedent, legal theory, and even language matter, when the judiciary, and especially the Supreme Court, are simply tools of the ruling party? How are Con Law professors at Yale and Harvard going to dissect decisions that are grounded in nothing but self-interest without wasting their students’ time, and their own?

Constitutional Law is now indeed, perhaps more than ever in our history, “merely politics made incomprehensible to the common man.”

If only it were just a soundbite…