Shalev Gad Roisman 

In a recent op-ed, Professors Ryan Doerfler and Samuel Moyn argue that progressives ought to abandon constitutionalism.  They suggest that liberal commitment to our Constitution—indeed to any form of “higher law”—has stood in the way of progressive policy victories over issues like labor rights, racial equality, and environmental justice.  Instead, in their view, all law should be based on what the current popular majority wants. No form of “higher law” should constrain the present majority’s will.  

In this response, I’d like to take their call seriously, but push back against it.  In my view, Doerfler and Moyn’s argument amounts to a radical bet that eliminating the rules of the game will lead to progressive policy wins.  But, as with all gambles, we cannot just focus on what we might gain but also on what we might lose.  No one can say for sure if the bet is worth it. Future politics and the broader contingencies of the real world will determine that. But, if progressives are going to consider taking this gamble, they should understand its downsides.

Doerfler and Moyn’s proposal is made in the form of an op-ed, which imposes limits on how much they can say.  This means that they do not have space to fully elaborate precisely what their proposal is or why we should adopt it.  So before responding, I will first clarify what I understand their proposal to be.  As I understand it, their proposal has two key components. 

The first component is a call to abandon the idea of any form of a Constitution or “higher law.”  Specifically, they reject the idea that “there needs to be some higher law that is more difficult to change than the rest of the legal order.”  The problem with Constitutions, in their view, is that they “inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from whose who live now.”  Instead, they argue that law should be whatever a current majority of the public wants—as captured in the enactments of a proportionally elected federal Congress. 

Note that this is not an argument against judicial supremacy—the idea that courts ought to have the final word on what the Constitution means rather than, say, elected officials in Congress.  The debate over judicial supremacy is longstanding, and Doerfler and Moyn have recently added their voices to it. But, here, Doerfler and Moyn are not focused on which institution ought to have final interpretive authority over the Constitution, but whether we ought to have any form of a Constitution at all.  Their argument is also not about how to amend the Constitution, by, for example, eliminating the disproportionate representation in the Senate and Electoral College, or even by making amending the Constitution easier.  These would be ways to make a better Constitution, but, again, their argument is that we should have no Constitution at all. 

The second main component of their proposal is that abandoning constitutionalism will be good for progressives.  It is not an argument that a pure majoritarian system is better as a matter of neutral political theory. Instead, they argue that such a system is good for progressives because it will result in progressive policy victories. This seems partly premised on the idea that progressives’ failure to enact policy priorities has been due in large part to a misguided focus on the Constitution, rather than on winning hearts and minds in the general population. As they put it, “[i]t’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.”  Pursuant to their system, then, they suggest that “[f]undamental values like racial equality or environment justice would be protected not by law that stands apart from politics but … by ordinary expressions of popular will.” 

In short, Doerfler and Moyn argue that (1) we should abandon any form of a Constitution and rely, instead, on a pure majoritarian system unconstrained by higher-order structural or individual rights limitations; and (2) that such a system will benefit progressives.  Both points strike me as unpersuasive. 

First, Doerfler and Moyn would prefer a system where we abandon higher law entirely—the present majority ought to be the final word on the law.  At the outset, I should note my confusion as to how precisely their system would work.  For there to be any system of government, some "higher law” must create and structure it.  For example, Doerfler and Moyn seem to envision Congress (as reconstructed to be proportionately elected) as the primary lawmaking institution in the country. Presumably, then, if Congress wishes to protect racial equality or environmental justice as they suggest, its desire to do so would invalidate inconsistent state law. But it is not clear why any state government should care about what the federal government says under their system unless there is some “higher law” telling them to.  Perhaps the idea is that anything Congress does automatically trumps inconsistent state law, because it is an instantiation of the current national majority’s will?  But where does this rule come from? 

Putting my confusion to the side, their proposal that all law ought to be decided by a current popular majority is quite radical—and, one gets the sense, it is meant to be. For example, under their proposed regime, there are no individual rights protections. If Congress—or perhaps a state legislature?—passes a law that prohibits any speech that does not show sufficient “respect” for the current government, no one could object on legal grounds.  If a current majority criminalizes the exercise of minority religions and requires conversion to a particular form of Christianity, there would be no legal protections.  Such laws would fall disproportionately on individuals who do not have political power, but the only way the interests of these individuals can be protected is if they convince majorities that their interests deserve protection.  In other words, the defense to tyranny of the majority would be to hope that people without power can convince those with power to treat them well.  Of course, rights are most protected when they are redundant—that is, when the majority does not wish to infringe on them in the first place.  But a system that treats the rights of the powerless as existing entirely at the pleasure of the then-current powerful ought to be cause for concern for progressives. 

Aside from eliminating individual rights protections, Doerfler and Moyn suggest that the current majority can also change the “basic structure of the government.”  This means that, although they suggest that “[i]t’s time for [liberals] to radically alter the basic rules of the game,” in fact their call seems to eliminate any sense of having rules of the game at all.  Under their system, whatever the current majority wants is what the rules will be.  Thus, even if Doerfler and Moyn get their wish and this system is put in place, a future majority can completely abandon it.  If a majority thinks that democratic rule is unappealing, it can simply change the rules to entrench minority, oligarchical, monarchical, or theocratic rule.  (It is not clear if this could be reversed by a future majority or, if so, how.  If there are no limits on what the current majority can do, perhaps they can pass a rule providing that future changes are unlawful. Only some form of “higher law” could prevent this.) 

Doerfler and Moyn’s proposal would thus eliminate all legal protections based in individual rights and the structure of the government.  Put like this, I doubt progressives would find that appealing.  So what’s in it for progressives? 

Doerfler and Moyn argue that this new system is desirable because it would help ensure progressive policy victories.  Instead of “[a]rming for war over the Constitution [which] concedes in advance that the left must translate its politics into something consistent with the past,” progressives could simply make arguments about “what fairness and justice demand” today.  Unencumbered by their misguided focus on the Constitution, progressives would then win majority support and “[f]undamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will.” 

But would they?  Doerfler and Moyn’s premise seems to be that if we get rid of any form of higher law, progressives will learn to really focus on winning at politics and convince a majority of the American public to adopt progressive policy goals.  Doerfler and Moyn do not explain what basis they have for believing a majority of the country will support progressive policy victories.  Perhaps they are relying on public opinion polls suggesting majority population-level support for things like abortion access, gun regulation, campaign finance limits and the like.  But, of course, one can find public opinion polls suggesting conservatives have the upper-hand on hot-button issues of the day.  Putting these polls to the side, even if we focus on the polls showing majority public-opinion support for certain progressive policies, would such support translate into electoral dominance by candidates in actual political races? 

This is a question of political prediction—an area in which neither I nor Doerfler and Moyn are experts.  But I have not seen strong evidence of the future electoral dominance that would require their bet to pay off.  After all, elections pit individuals, not policies, against each other. So the question is whether progressive individuals—who currently run as Democrats—would have a reliable and long-term advantage in races against Republicans.  On that question, the evidence strikes me as decidedly mixed. 

Let’s look at some recent popular vote tallies. In 2020, in the midst of President Trump’s perceived disastrous handling of the covid pandemic, among innumerable other scandals, Joe Biden defeated him by a mere four percentage points nation-wide.  Democrats national popular vote margin in the House was an even smaller three percentage points.  In 2016, Hillary Clinton defeated Donald Trump by two percentage points, and Republicans won the national house vote by one percentage point. 

This is not a very comforting picture.  It certainly seems plausible that Democrats would win national majorities at least some of the time.  But it is hardly a picture supporting any sort of confidence in the view that long-term progressive electoral dominance would result.  Put another way, do progressives really want to bet the whole system of government on two to four percent of the country not changing its mind? 

Doerfler and Moyn might respond that past results do not predict future performance; that we cannot disentangle these results from liberals’ infatuation with constitutionalism.  Unencumbered by their focus on the Constitution, progressives would make more full-throated arguments about why their politics are the right ones for today and they would win.  In this way, their claim tracks some of Moyn’s well-known arguments in the human rights and law of war domains that liberals misguided focus on, respectively, political human rights and making war more humane might have had the unintended consequences of discouraging attempts to make the world’s poor more economically secure and reducing focus on the more important goal of eliminating war entirely.  Perhaps, here too, liberals have been too focused on the Constitution, which occluded the possibilities of full-throated arguments for progressive policies.  Once progressives fully embrace the present, then they will be able to convince the public. 

Of course, I cannot disprove this claim, which is counterfactual in nature.  But I have serious doubts about it.  For example, it strikes me as quite unlikely that the reason that Raphael Warnock and Mark Kelly are in “toss up” races with Hershel Walker and Blake Masters is that Warnock and Kelly have been too distracted by the Constitution to make full-throated progressive arguments. 

Without being able to definitively predict what would happen if progressives were to make political arguments in a pure majoritarian system, the question of whether we ought to try out Doerfler and Moyn’s proposal strikes me as depending on what would happen not only if they are right, but if they are wrong.  In other words, what if conservatives, rather than progressives, win under their system?  What if four percentage points of the population does flip toward Republicans?  This requires another exercise in political imagination. So here goes. 

Imagine that in 2024, the economy does not recover in time, Donald Trump runs again and defeats President Biden in the popular vote.  Again, this would require a mere four-point swing from 2020. For comparison’s sake, the popular vote shift from 2008 to 2012, when a much more popular Democratic incumbent ran, was three points toward Republicans. 

President Trump takes office and as his term is winding down in 2028, he decides he’d like to run for another term.  Although the Constitution imposes a two-term limit on Presidents, under a Doerfler and Moyn regime, this limit could not constrain a Republican majority from passing a law permitting President Trump to run again.  Republicans control the House—the Senate has lost its ability to prevent laws from being enacted per Doerfler and Moyn’s suggestion—and Trump wins again. 

In his next term, he eliminates the civil service, hires only political loyalists to run the federal bureaucracy, and uses government resources—including criminal investigations, tax audits, and tax seizures—to explicitly target his political opponents, stating that “anyone who gave money to Democrats hates this country and should not be able to fund any more of their radical proposals. We will eliminate their ability to do so and give the money that is rightfully America’s to true patriots.”  He uses criminal investigations to put insufficiently “loyal” newspapers and cable channels—which he has already deemed “enemies of the people”—out of business.  Far from a majoritarian system leading to progressive victories, this is, of course, a progressive nightmare. 

Maybe President Trump would not have that much staying power or not be disciplined enough to pull all this off.  Imagine, instead, that a different Republican—a more disciplined and competent Trump-like figure—defeats President Trump in the 2024 primary and goes on to defeat President Biden by several points.  Republicans again control Congress. 

In the lead up to the 2028 election, an FBI investigation creates a scandal surrounding the new Republican administration two weeks before election day.  The President genuinely believes this is an attempt by “deep state” liberals to sink his candidacy and argues it would be unfair to hold an election as a scandal unfolds—echoing sentiments that a then-current majority of progressives might have shared after the release of the Comey Letter in 2016.  He argues that the election should be postponed.  Congress agrees and passes a law moving election day three months later.  This move is entirely lawful because a current majority supports it. 

Even after the postponed election, the President loses the popular vote. This does not phase him, though, because he decides he will just change how Presidents get elected.  He argues that what really matters is not the popular vote but who won the most states and he won 26 states to his progressive opponent’s 24.  Congress passes a law changing how the President is elected retroactively to depend on the number of states won and it takes effect.  Again, this is perfectly lawful, because “the basic structure of government, like whether to elect the president by majority vote … [should] be decided by the present electorate, as opposed to one from some foggy past.” 

During the ensuing administration, conservative media outlets report on rising crime, tying it to protections against search and seizure and coerced confessions.  The President responds by arguing that “the police must be able to do their jobs to protect the law-abiding citizens of this country,” and “[i]f you have nothing to hide, then there is no problem with police searching your belongings or asking you some questions.  People don’t confess to crimes they didn’t commit.”  He proposes eliminating the Fourth and Fifth Amendments’ rights.  Congress agrees and pass a law eliminating all rights against search and seizure or self-incrimination. The only recourse for someone searched or interrogated is to convince the next Congress to change the law. 

We can keep playing this out. An immigration hawk wins and withdraws citizenship for people born in the United States whose parents were not already American citizens. A religious populist wins and requires forced conversions for all non-Christians. 

Above I have focused on the federal government, but progressives in red and purple states would also be in danger. If a state legislature infringes on their interests in personal autonomy, religion, voting, or anything else, they would have no legal protection in the form of higher law. True, under the Doerfler and Moyn system, Congress could protect such interests (assuming Congress can override state law), but if state citizens cannot convince Congress that they need or deserve protection, they are out of luck. 

Some of the scenarios above might seem fanciful or unrealistic. (Although recall that a wide majority of Republicans in the House—Doerfler and Moyn’s preferred majoritarian institution—voted to overturn the last election and many of the Republicans who voted to impeach President Trump have since lost their primaries for that reason).  Much of this would fly in the face of basic democratic norms protecting core individual rights and majoritarian preferences, and against government self-dealing and retroactivity.  Perhaps a pure majoritarian system could work here if combined with a strong reliance on non-legal but firmly felt democratic norms and traditions—something like the system of parliamentary sovereignty in the United Kingdom (where there is a Constitution, albeit an “unwritten” one, and which is hardly a bastion of progressive policymaking).  But Doerfler and Moyn likely would not want to rely on such norms or conventions.  After all, one of their main critiques of constitutionalism is its reliance on looking to such norms and traditions for answers to how to govern today. 

It is not entirely clear what Doerfler and Moyn mean when they argue that a primary problem with Constitutions is that they “inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now,” or their call to avoid looking to “promises said to be already in our traditions [instead of] arguments about what fairness or justice demands” today.  But, at its core, their argument seems to be a desire to focus on winning arguments today rather than focusing on settled agreements and conventions of the past. 

It would seem odd to rely on democratic norms as a backstop against scenarios like those imagined above, while at the same decrying our reliance on them.  Perhaps their claim would be that, if these democratic norms are worth protecting, then a popular majority will see that wisdom and protect them.  But it is very easy for a majority to think that it does not need to worry about what would happen if it were in the minority, particularly when it has the ability to avoid ever being out of power. 

A broader concern I have about their approach’s jettisoning of the past in favor of a full focus on today is that it puts everything on the table.  So much of how our government and society operate relies on how things have been done.  It is one thing to have a reasoned and deliberate debate about how to phrase a particular right against search and seizure, whether a right to abortion ought to have any limits, how we ought to structure representation in our federal government, what relationship our federal government should have with state governments, and so on.  But their proposal seems to put all of these questions on the table and all at once.  This risks dramatic instability. 

If we are to destabilize our system of government by eliminating the rules that have structured and constrained it, then we should accept that doing so could lead to chaos—a situation that rarely benefits the marginalized and oppressed in a society.  Although we could in theory end up with something better, we could easily end up with something far worse. 

At its core, Doerfler and Moyn’s claim is that America has failed to live up to its potential and that we can do better. I do not agree that their proposal is the way to improve America’s government, but I share with them the desire to do so.  I also share with them the view that, rather than resting on the laurels of rights that have been judicially recognized in the past, progressives would be wise to focus on persuading people to agree with their positions on what individual interests ought to be protected as well as which policies ought to be pursued.  But this focus can be adopted without abandoning rights entirely and without adopting a purely majoritarian system on how to structure our government. 

Perhaps I am just less optimistic than Doerfler and Moyn.  They seem to believe that if we open up our system to be more purely majoritarian, values that liberals (both in the small-l and Democratic-party sense) will win out.  I am not so sure.  At the least, I think we need to be concerned about what happens if they are wrong. 

And, for what it’s worth, I do not think most Americans—or even progressives—would like a pure winner-takes-all system.  Such a system risks turning our politics into a full no-holds-barred battle for domination of the other side.  Even if progressives turn out to be the winners under that system, do we want to live in a country where one side battles to completely dominate the other?  If so, would any progressive win be sustainable? 

It often feels like we already live in that system. But there are lots of protections in our current society for people who are not in the majority—including to free speech, to be free from government searches without probable cause, to practice minority religions, to organize around political causes, and so on.  Those protections are likely not sufficient, but there is little reason to think that abandoning them entirely will make things better, rather than worse.  Maybe I’m wrong about that.  Maybe Doerfler and Moyn are right that a pure winner-takes-all system would benefit progressives.  But, as I have tried to show above, it could also deeply hurt them. 

If we are going to bet it all, we need to be willing to lose it all too.  Are you? 

Shalev Gad Roisman is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law. You can reach him at sroisman@arizona.edu.