Many people have linked to this recent op-ed in The NY Times by Harvard Law professor Ryan Doerfler and Yale Law professor Samuel Moyn. John Hinderaker of Powerline discusses the piece here, as well, and he calls it “literally one of the stupidest things I have ever read.”
I could not disagree more with Hinderaker on that particular point. I don’t believe it’s the least bit stupid, except in the sense that it reveals too much of the left’s plans too soon, and might alarm people other than those on the right. It’s pernicious rather than stupid, and actually rather clever. Apparently the authors don’t think that alarming moderates by stating radical leftist proposals is much of a problem, because the article certainly calls attention to certain plans of the left if they ever get at least 51 reliable votes in the Senate for it while simultaneously controlling the House and the presidency. Right now they have all those things except for the 51 reliable votes for it, but I believe there are only a couple of holdouts.
Here’s the plan, as summarized by Hinderaker, to change what the two Ivy law prof authors call the “inadequate” Constitution – inadequate to leftist aims for total power, that is:
The Times op-ed links to a 2020 article in the Harvard Law Review that advocates a plan whereby leftists can take permanent control over the United States, in effect staging a coup. The proposal is to break the District of Columbia down into 127 neighborhoods, and admit each of those 127 neighborhoods as a new state.
In a comment of mine last night on the subject, I wrote:
It would basically be Washington DC taking control of the entire country and dictating what it would be doing. Sort of analogous to the Enabling Act (since we’re talking about Nazi analogies, right?) only with a DC-dominated legislature doing the dictating rather than the Fuhrer.
Tyrannies are often willing to use legal means to effect their ends of undoing the checks and balances placed in a constitution in order to avoid tyranny. No constitution is perfect, and clever and highly-motivated folks such as Doerfler and Moyn can certainly come up with seemingly legal ways to do it – and although perhaps SCOTUS would try to stop them, how many divisions does SCOTUS have, after all? Plus, the plans are to pack SCOTUS with far-left justices simpatico with “progressive” views.
However, as you can see by that reference to a 2020 Harvard Law Review article, these ideas are not new. I wrote about that Harvard Law Review article in this January 2021 post. Here’s an excerpt from what I wrote back then [emphasis added]:
…I know of no constitutional impediment to that scheme. Unfortunately. But why hasn’t it been tried before? I think the main reason is that the far left has never been in charge of this country before. Previously, although politics has been hard-fought and often dirty, with shady machinations of one sort of other, there has never been an all out totalitarian group in charge before…
Some of the constitutional impediments to making the District a state can be found in this 1993 article, from which you can see that Democrats have contemplated this move before.
Whether SCOTUS would be able or willing to bar the move is unknown, but one thing we do know is that the Democrats in Congress are very serious about this, having passed a bill this past June making DC (or most of it) a state, although the bill died in the GOP-held Congress. Rest assured that it would have a much better chance in the present Congress, and of course Biden would sign it with a flourish. And once a state is admitted it cannot be banished. I believe that the current Democrats are deadly serious about it, although I doubt that all that many people who voted for them last November were even aware of that fact.
D. Cohen mentions at the end of that comment that “it looks like [the Democrats] are being pikers settling for just two extra states.” My response is: what makes you think they plan to stop there?
I mean that quite seriously. Ideas once unthinkable are often first floated in op-eds and/or law review articles, to test the waters and in order to nudge that Overton Window a bit more open. In that regard, please note this article that appeared in the Harvard Law Review last January. It was published as an unsigned “note,” which means that it was the work of students.
It is titled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation,” and I suggest you read it or at least part of it. Here is a small excerpt:
“To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.
“Radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live. The people should not tolerate a system that is manifestly unfair; they should instead fight fire with fire, and use the unfair provisions of the Constitution to create a better system.”
So you see that the very recent op-ed in the Times is just a retread of older proposals, repeated in order to norm very radical ideas and also because I think the January 6th “insurrection” and persecutions, as well as the MAL raid and the continual discrediting of the Founders, have helped pave the way to scrap the Constitution. The right is now sufficiently demonized in the minds of many people that radical moves against the right probably wouldn’t seem all that radical to more and more people, although I don’t think it’s a majority who would support these proposals. However, I believe that most Democratic voters don’t understand the danger of voting for Democrats at this point, and therefore would vote for people who would vote for these sorts of radical changes.
In addition – and this is connected to the point I just made – I also believe that most Americans no longer know why we are a republic rather than a democracy, nor do a great many of them even understand the difference between those two terms. Madison’s “tyranny of the majority” and its dangers have no meaning to them, since so many either know little about American history or were taught it is pernicious. This is no accident; it is part of the whole, and that whole is designed to allow the left to take permanent power by hook or by crook.
That’s why you see in that Times op-ed from Doerfler and Moyn – and in so many other pieces and statements recently – references to “democracy” and “our democracy.” The authors are well aware of what a republic is and why the Founders established institutions such as the Electoral College, but the authors and the left rely on the public’s relative ignorance of those things and play up the “democracy” angle which they correctly believe appeals to a lot of people.
Here’s a small excerpt from the op-ed [emphasis mine]:
Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change…
One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.
Of course there are no such “substantial majorities” – that’s why so many new states with small populations, coming from one wholly-Democratic enclave and encompassing federal employees, must be created to perform this supposedly “democratic” feat. But never mind, right?
And from the 2020 Harvard Law Review article [emphasis mine]:
More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “council of revision” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.
In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review.
A very blatant statement of raw power and disregard for the checks and balances of our government, all in the name of “democracy” in order to engineer a takeover of the federal government that most Americans don’t want and of which they presently are unaware is part of the left’s plans.
In the comments to Hinderaker’s Powerline post, you can find these statements:
Well the French Revolution worked so well, why shouldn’t we try it over here.
What would they do, if they got their pure democracy they want, if the People decided that Harvard and Yale law professors are to be taken out and shot. For holding positions that should have gone to the chosen ones, picked by the People’s Party?
And explicitly have DC control the rest of the country.
In other words, while we have the power to do so we must change all the rules so that we will never lose power.
Indeed, that is the idea of the Times op-ed. And these are not just the thoughts of a few random law professors. Not only do they teach the younger generations, but I am convinced that they are speaking for the left as a whole.
Let me add that a less specific but similar op-ed appeared in the Times nearly a decade ago, and I wrote about it in this post from January of 2013. That was right after Obama had been elected for a second term, and I believe the timing was no accident. The author was another Ivy law professor, that time from Georgetown. Here’s an excerpt from what I wrote back then:
As for why the Times decided to publish this piece right now, one can only conclude they see the time as ripe for delegitimizing the Constitution in order to further the leftist agenda, and seek to use Seidman’s credentials to make the argument from authority. The ground has been well prepared for this by our president, the MSM, and our educational system, so their calculations may indeed be correct.
The left is very very patient.
NOTE: An in-depth discussion of the following point is way beyond the scope of this already-very-long post, but I want to briefly state that I believe the genesis of the approach of Doerfler and Moyn and their fellow legal “progressives” is the 40-year-old field of Critical Legal Studies, which like one of its more recent offshoots, CRT, teaches that power is the only reality and that objectivity in the law is a complete illusion and utter lie. Therefore, go for the power. Moyn himself has written about Critical Legal Theory here, in 2017, but unfortunately, I can only access the first page of his piece on the subject and therefore am not sure what he wrote about it. But from that small sample I am guessing that he would like to revive at least some of the tenets of CLT and reframe them in a more palatable fashion that will stand up better to criticism. Along these lines, see this very recent tweet by Moyn:
Of course, the fact that most judges are not able to be completely objective and totally apolitical is not an argument for throwing out the idea of striving for as much objectivity as possible, and instead to make the Court nakedly and obviously political with no pretense of objectivity at all. That would mean the Court was not any sort of court at all, and that the rules that govern a court and in fact law in general could be tossed for political reasons without reserve or apology.
