Shalev Gad Roisman (University of Arizona James E. Rogers College of Law) has posted Betting it All: A Response to Doerfler and Moyn's Proposal to Abandon Constitutionalism (Balkinization (2022) https://balkin.blogspot.com/2022/09/betting-it-all-response-to-doerfler-and.html) on SSRN. Here is the abstract:
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 short 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 potential downsides.