A call to rebellion

Apparently, you can teach constitutional law at Harvard Law School and not understand the basics of the U.S. Constitution. As everyone who has heard the story about Ben Franklin knows, the Founders gave us a republic, if we can keep it—not a democracy. That fact seems to have been lost on Professor Mark Tushnet, author of a recent open letter urging President Biden to simply ignore those rulings of the United States Supreme Court he does not like. His open letter is coauthored with a San Francisco State University professor, Aaron Belkin, who describes himself as “a scholar, author, activist and dancer.”

Their letter begins, “We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.”

Let’s set aside silly terminology like “MAGA justices” and “MAGA rulings,” whatever they mean, and focus instead on the purposes of the Constitution. Our American constitution has two fundamental roles, both of which serve the same end. First, it defines the structure of our federal government, the three branches and their relationships to one another and the states and the people. Second, it ensconces particular rights and liberties in constitutional status. In both ways, it takes certain fundamental principles and removes them from our everyday political decision-making, elevating them to the level of nearly permanent protections that require supermajorities to change.

Not every country is structured this way. Great Britain and Israel, two advanced Western nations and the closest of American allies, do not have written constitutions. Their parliamentary systems of government reflect far greater levels of direct democratic control: Israel is a unicameral (single house) legislature, and Great Britain operates as basically the same. These legislatures choose the prime minister and his cabinet, ensuring alignment between the legislative and executive, furthering direct democratic control.

America chose a different path from our founding and determined to ensure our rights and to make sure the structures that protect them are not subject to the whims of temporary majorities, and creating the possibility of divided government.

This bothers Professor Tushnet, who would rather just have President Biden toss aside Supreme Court decisions he dislikes. President Biden should “ignore” Supreme Court decisions “when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration’s constitutional interpretations would substantially mitigate the damage posed by the ruling in question.” What policy issues are “high stakes” and which decisions are “gravely mistaken” he does not specify, nor does he provide any clear barometer on which to judge when these moments occur. At least the decisions of the “MAGA justices” can be compared to the text, history, and tradition of the Constitution—there is no objective standard by which to apply Professor Tushnet’s exception.

He does admit one danger of his idea, conceding that “future GOP administrations would cite it as precedent for ignoring federal courts. Notably, though, Republican presidents might well ignore federal courts regardless of what President Biden does: “It is not hard to imagine that a President Trump or DeSantis would circumvent or ignore rulings issued by a liberal Supreme Court.” Actually, President Trump is under indictment by this very legal system, and yet he has willingly complied with every step of a process he believes to be unjust and biased against him. Throughout his presidency, many of his signature initiatives were subject to nationwide injunctions from single federal district court judges, and yet the administration complied. And let’s not forget the pro-life movement spent five decades respecting Roe while engaging in consistent, persistent, incremental efforts to reverse the decision.

The Constitution belongs to all Americans. And all three branches—Congress, courts, and the president—should take seriously their oaths by faithfully interpreting and applying it. But the president and the legal academy should also respect the rule of law. If presidents start picking and choosing which provisions of the Constitution they want to follow, it won’t really be a constitution anymore, and we will have lost the republic.