What Do We Call Jonathan Turley?
A certain three letter word might suffice. By Daniel Lazare
Jonathan Turley has long been the thinking man’s (or woman’s) conservative. He leans right but has been admirably independent when it comes to opposing abuses of power and defending civil liberties. In the course of a long and distinguished legal career – he teaches at George Washington University and has appeared as a legal analyst on NBC, CBS, Fox, and the BBC – he has stood up for the legal right to practice polygamy, attacked the ongoing judicial atrocity at Guantanamo Bay, and spoken out against “forever wars” in the Middle East. He has also been very good on the Hunter Biden corruption story, which papers like the New York Times and Washington Post have done their best to bury.
But a conservative is still a conservative, something that an op-ed Turley published two weeks ago in the Wall Street Journal makes crystal clear. Entitled “The Left’s Assault on the Constitution,” the article advances an updated version of the old-fashioned Toryism once associated with judges in horsehair wigs and 12-year-old pickpockets sentenced to the gibbet. A Scottish judge summed it up in 1793 when he sentenced a political reformer to exile for calling for the oligarchical state structure to be changed. “The British constitution,” he thundered, “is the best there ever was since the creation of the world, and it is not possible to make it any better.”
Change one iota, in other words, and the heavens will fall and the mountains will crumble into the sea – such is the mindless resistance that Turley is now trying to resurrect. In 1793, the threat to the status quo consisted of British radicals enamored of recent events in Paris, but today, it consists of liberals up in arms over a dictatorial Supreme Court. The anti-constitutional “radicals” Turley condemns thus include Joe Biden and Kamala Harris for calling for Supreme Court term limits and a mandatory code of ethics, Berkeley law school dean Erwin Chemerinsky for describing high-court justices as “partisan hacks,” and New York Times book critic Jennifer Szalai for noting that “Americans have long assumed that the Constitution could save us; a growing chorus now wonders whether we need to be saved from it.”
Turley is shocked that people would speak so rudely about America’s holy of holies. Others on his hit list include law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale for calling on liberals to “reclaim America from constitutionalism,” Nation columnist Elie Mystal for urging the abolition of the Senate, and a Georgetown law prof named Rosa Brooks for complaining that Americans “are essentially slaves to a document that was written more than 230 years ago by a tiny group of white slave-owning men.”
All are part of “a growing counter-constitutional movement that began in higher education and seems recently to have reached a critical mass in the media and politics,” he says. The result is “an explosion of books and articles laying out a new vision of ‘democracy’ unconstrained by constitutional limits on majority power.” It’s a vision that Turley doesn’t like it one bit.
Why? “Without counter-majoritarian protections and institutions, politics would be reduced to raw power.” And why is that bad? Because it would unleash “bold” plans for constitutional reform. According to Turley:
“The constitutional system ... seeks to protect individual rights, minority factions and smaller states from the tyranny of the majority. The result is a system that forces compromise. It doesn’t protect us from political divisions any more than good medical care protects us from cancer. Rather, it allows the body politic to survive political afflictions by pushing factions toward negotiation and moderation.”
Compromise will give way to brute force, individual rights will vanish, and reformers will run riot if checks and balances are removed. As a 19th-century British member of Parliament supposedly exclaimed, “Reform! Reform! My God, aren’t things bad enough as they are?”
In fact, it’s not clear why raw political power is any scarier than, say, raw electrical power that runs a toaster or vacuum cleaner. The Declaration of Independence extolls raw power when, apropos of life, liberty, and the pursuit of happiness, it says that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”
Abolishing government merely because it no longer serves the people’s interests is as raw as it gets. So is the Constitution, which opens with a famous line about “we the people” forming “a more perfect union.” Not only were the people determined to do whatever it took to establish justice and insure domestic tranquility, but they were willing to overthrow the Articles of Confederation, America’s original frame of government, in order to do it.
Given that the Articles were still in effect in 1787, this means that the 55 delegates who gathered in Philadelphia countenanced breaking the law so as to put government on a proper footing. This is also pretty raw. (See “Is the Constitution Unconstitutional?” Aug. 9.) Yet the result was to establish the Constitution that Turley now reveres.
Unlimited power was needed to establish a limited government – such is the paradox of modern liberalism. As to “protect[ing] individual rights, minority factions and smaller states from the tyranny of the majority,” one can only wonder where Turley has been. Individual rights such as the right to an abortion are in ruins – due not to reform but to a thoroughly unreformed Supreme Court that is beyond democratic control. “Minority factions” that dare criticize US policy in Gaza or Ukraine face growing repression. As to the horrors that small states will supposedly suffer if checks and balances go out the window, why do they deserve protection any more than large-state residents whose rights of equal representation are trampled every day? The Electoral College gives voters in lily-white Wyoming nearly four times as much clout in presidential elections as residents of a minority-majority giant like California. The Senate allows the 54 percent of the country that lives in just ten states to be outvoted four to one by the minority that lives in the other 40. Why doesn’t Turley worry about their rights as well?
The same goes for “tyranny of the majority,” a meaningless cliché if ever there was one. What is Turley saying – that if a majority of Americans vote for a particular presidential candidate, it’s tyrannical of them to expect him or her to enter the Oval Office instead of the person who came in second? The problem with America’s broken-down constitution is that it allows the minority to tyrannize the democratic majority.
“When Benjamin Franklin said the framers had created ‘a republic, if you can keep it,’ he meant that we needed to keep faith in the Constitution.” But why do we have to keep the faith after all these years? Aren’t more than two centuries of faithful obedience enough? Turley accuses academics of mistaking “their own crisis of faith for a constitutional crisis.” Congress is paralyzed, Senate filibusters are running at a rate of three a week, and we’ve already suffered one attempted coup and will undoubtedly suffer more. Yet he thinks that law professors are making it all up.
Rosa Brooks, the Georgetown professor who described Americans as slaves to the Constitution, made an important point in the 2022 TV interview that got Turley so upset. Just days after a 21-year-old man named Robert E. Crimo III used an assault rifle to kill seven people at a Fourth of July parade in suburban Chicago, she said:
“The harm that people can do with things like AR-15s is staggering. You talk to military veterans, talk to police officers, and they will all say these are weapons of war, essentially. These are not weapons that people are using for any legitimate purpose. They are weapons that people use to commit mass slaughter, period.”
Yet the courts have come around to the view that the Second Amendment’s protection of the right to bear arms is so broad that it’s impossible to say no. And, ironically, they’re right. The ACLU notwithstanding, the Second Amendment’s language is indeed sweeping, a point I’ve made for 25 years. But rather than making the right more rational, the effect is to make it less by embedding it in a constitution that is effectively unchangeable. Yes, thanks to the dysfunctional amending clause in Article V that allows 13 states representing as little as 4.4 percent of the population to block any and all efforts at constitutional reform, the Second Amendment is set in stone. Crazed gunmen are mowing down people in classrooms and the streets, yet a supposed instrument of democratic self-government says we cannot take their guns away – ever.
This is the immovable law that Turley applauds. To quote Dickens’s Mr. Brumble: “If the law supposes that, the law is a ass – a idiot. If that’s the eye of the law ... the worst I wish the law is that his eye may be opened by experience – by experience.”
If the law is an ass, what do we call an esteemed legal authority who defends it?