Perhaps it is because it is the last day of a dying year, with the birth of a new one just before us. Perhaps it is because it is the end of this President's first term, with his second just to come. Whatever the reason, the New York Times has finally felt liberated to publish a piece explaining just what their class thinks of the Constitution. Here are the opening and closing propositions:
...[blame] the Constitution, with all its archaic, idiosyncratic and downright evil provisions.... we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.
Little in the piece surprises: disdain for the Founders, repeated references to America's legacy of slavery (that original sin that taints the country forever), and a desire that government should be liberated from all bonds so that it can pursue whatever good it settles upon. The only thing that surprises is the professor's assumption that a government, so liberated, will be inclined to pursue good at all.
For example, he writes that we should continue to be bound by the strictures he likes -- freedom of speech, religion, equal protection under the law, and a few others -- "out of respect, not obligation." Doubtless a government so respectful of these things that it required no obligations would be pleasant, but I have never seen it. There is a reason that lawsuits on these topics regularly reach the Supreme Court, which is that the government already fails to respect even these principles on a regular basis -- and that with the obligation in place.
Even more amazing is the claim that, under his proposed non-system, "The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief." It's bad enough that a professor of Constitutional law doesn't realize that Congress has a very strong Constitutional claim against the 'unchallengable power' he cites: the power to declare war. What is worse is his notion that a President freed of Constitutional constraints would bother to justify military action at all.
Of course, the President might find himself forced to justify the action to one group under the new system: the military that would be liberated from any Constitutional duty to obey his orders. I wonder what that system might look like? I wonder, too, why it never occured to the professor to ask. His faith in government extends to the assumption that only things he approves of are possible if the government is liberated from Constitutional control. Somehow, something will keep everyone abiding by the parts of the system the professor likes.
Kindness, I suppose.