Liberty, Prudence, Imperfection, and Law

“A Constitutionalist in Full: Jonathan Turley’s Selfless Defense of the Constitution,” By Kevin Gutzman

Prof. Jonathan Turley of the George Washington University Law School in Washington, DC is a brave fellow. Rather, he is one who must be satisfied with his position in legal academia.

For the most part, legal academia is a huge hierarchy. Faculty members at lower-ranking schools are always on the lookout for opportunities to move to positions at higher-ranking schools, where they will be paid more, teach more accomplished students, have greater odds of seeing their work change the American legal system, and enjoy greater prestige. To migrate from one school to another is much easier in legal academia than in the rest of the academy. Thus, off the top of my head, I can think of professors I encountered during my years as a student at the University of Texas (UT) Law School who are now at Columbia, Yale, and Virginia, in addition to one who has occasionally taught at Harvard. While UT Law is consistently ranked between #10 and #15, all four of those schools consistently rank above it.

Besides their commitment to the academic game, what those four professors share is that their work has steadily advanced left-wing outcomes in their respective areas of law, notably in constitutional law. Two of them are noted exponents of non-originalist approaches to the Constitution. I will hazard the assertion that if the opposite were true—if they were prominent originalists—they would not be in their current positions, and likely would never have been employed at UT.

Jonathan Turley has demonstrated interest in climbing the academic ladder by moving from Tulane Law School to his current position. In light of his media and scholarly prominence, he might have hoped for further advancement. Apparently, however, he has other priorities.

For several months now, Turley has been sounding the clarion call to consider President Barack Obama as an essentially lawless president, his administration as a lawless administration. Across a wide range of issues, Turley insists, Obama has been hostile to the basic structure of the Federal Government under the US Constitution—Article I’s assignment of the legislative power to the Congress, Article II’s assignment of the executive responsibility to the president, and Article III’s assignment of the judicial authority to federal courts, with additional checks and balances such as the Senate’s role in appointments.

In public prints, on television, and before Congress, Turley has decried Obama’s stated intention to take, and his past actions taking, essentially legislative action in case Congress omits or omitted to pass legislation meeting his specifications. When it comes to immigration, for example, this presidential intervention in the legislative process has yielded stalemate between the two houses of Congress, each of which has passed immigration legislation and neither of which has appointed members to a conference committee on the subject.

Rather than play the classic presidential role in the process, Obama has chosen an alternative: to mischaracterize the situation via a public campaign of propaganda against the Constitution itself. Where he might have noted that a bicameral legislature is intended to stalemate when the two houses cannot agree and called on the public to support the Democratic position, Obama has instead insisted that when this perfectly foreseeable and foreseen situation occurs, the president may and should act as legislator. Over and over, Turley has noted—rightly—that Obama’s behavior threatens what he calls “the Madisonian system.” If the president feels free to issue Executive decrees essentially changing the law instead of seeking legislative change from Congress and then living with the results, we will indeed have lived through a radical remaking of our constitutional system.

Turn on C-SPAN in time to catch Turley before a House committee, and you will see exactly how uncomfortable a position his fidelity to the idea of a written constitution has entailed. With a prominent former high appointee in a Democratic administration sitting next to him arguing to the contrary—because “they all do it,” Turley says America is now at what he calls a “tipping point.” Accept Obama’s threatened behavior as normal, and there will be no going back. Barack Obama’s presidency could in that case be truly transformative, as the president entered office vowing it would be.

There is no career advancement awaiting Turley for criticizing a president whose policy goals he repeatedly claims to support. Like Raoul Berger in days of old, Turley finds himself making an argument that appeals to his policy opponents because he believes that maintaining a constitutional culture is a more important ethical imperative than securing appointments to the NLRB, granting legalization to minor illegal aliens, or even enacting Obamacare. John Conyers may invoke “the Good and Plenty Clause” when prodded to cite constitutional authority for the Democratic agenda, but for Turley, such talk is not amusing. It is not even solely embarrassing. It is an augury of very, very bad things to come.

In a just world, Professor Jonathan Turley’s honesty as a public intellectual would not overshadow his significant academic accomplishments. He would rise as far up the academic ladder as his work merited. His patriotism is manifest in his taking steps he knows this sometimes unjust world is not apt to reward, and will likely hold against him. I admire him for that.

Kevin R. C. Gutzman is the New York Times best-selling author of four books. These include his latest title, James Madison and the Making of America. Professor of History at Western Connecticut State University, Gutzman holds a bachelor’s degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia.


3 Responses to ““A Constitutionalist in Full: Jonathan Turley’s Selfless Defense of the Constitution,” By Kevin Gutzman”

  1. gabe

    If I may make a book recommendation on this topic:

    Phillip Hamburger, “Is Administrative Law Unlawful” recently published.
    May be of interest to readers of this site.


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