S2 E8 The Constitution Should not be Reclaimed with Samuel Moyn

Welcome back to the Peaceful Political Revolution in America podcast.

In America, "We The People" are the constituent power, "the actor which always remains outside the government" as Seyes defined it. Or, as James Wilson put it, the people are simply "above" their Constitutions of government. The framers were well aware the people were watching. They were very clear the legitimacy of the government came from the consent of the governed. That is what made our framers revolutionaries, and why our Constitution is so remarkable. But, how do the people, if ever necessary,  improve or replace their constitutions of government?


It is true the peaceful transfer of power is the hallmark of any democracy, however, even more significant is the peacefultransition from one political system to another. All the framers understood this would be necessary, sooner or later. After all, this was the revolutionary example they were leaving to posterity. It is a lesson we should not take for granted. As Americans, we should all take great pride in and be humbled by this achievement. Without the peaceful exercise of the right to establish, abolish, or simply improve our form of government, there is little left of our democracy.


As Sergio Verdugo points out however, many kinds of political actors may have a motivation for co-opting this power and for using it to their own advantage. Nevertheless, Thomas Paine, Thomas Jefferson, George Washington, and according to Christian Fritz, the author of American Sovereigns, most Americans in the 18th century believed this power was the people's power, theirs alone to invoke. So, how and why could it be taken from them, even used against them?


This question remains one of the most critical questions of our time, as more and more scholars and "political actors" begin to assert that our Constitution is broken, and should be changed if not entirely replaced. How that is done matters. 

People like Mark Levin and Donald Trump think we should be afraid of our government. “Stand back and stand by,” for now, but what happens tomorrow? They believe the deep state is the enemy, not the Constitution. They project a dystopian vision of our society, as do many liberals on the other fringe, and the control for power is far from over. If Americans think their political system has run amock, why are they not calling for a peaceful transition to a new and improved democracy? After all, this is what the framers did,  and it is how our democracy was intended to work.

The question of legitimacy is the first and last question we must answer. Who has the power to alter and replace our basic law, and how does that power organize to express itself so that Americans might agree to establish a new constitution and replace our broken political system with one that works?


In his recent op-ed in the NYTimes, Samuel Moyn and Ryan  Doerfler argue that our Constitution should not be reclaimed and that we should also reclaim America from what is referred to as constitutionalism. These ideas and these terms are not all that familiar to most Americans, yet they are the sort of ideas and words that may empower America to become a full and effective democracy.

Samuel Moyn is Chancellor Kent Professor of Law and History at Yale University. He received a doctorate in modern European history from the University of California-Berkeley in 2000, and a law degree from Harvard University in 2001. He came to Yale from Harvard University, where he was Jeremiah Smith, Jr. Professor of Law and Professor of History. Before this, he spent thirteen years in the Columbia University history department, where he was most recently James Bryce Professor of European Legal History.