John Yoo speaks at the National Review Institute’s Foundations of Freedom Seminars event in Dallas, Texas, February 14, 2024.

Story by John Yoo | June 23, 2024 | The National Review

The following remarks, lightly adapted, were delivered by the author in Dallas on February 14, as part of National Review Institute’s Foundations of Freedom Seminars series on the Importance of America’s Constitutional Pillars

It’s wonderful to have the opportunity to leave the People’s Republic of Berkeley and visit the United States of America.

But more importantly, it’s an honor to be here at the invitation of National Review. I think it remains the premier publication for conservative opinion and commentary not just in the United States, but in the Western world.

National Review features a wide diversity of conservative thought and argument in a readable format, understandable to a curious reader from any walk of life. To publish in it is an honor, putting me in the good company of great thinkers who have attached their names to National Review articles. Even those writers who have left National Review have led exceptional careers; some of them have assumed roles as editors at other fine publications, and others have even gone on to work at the New York Times or the Washington Post.

I don’t like delivering addresses. Instead, I like to ask questions. I was informed, however, that the audience would not be prepared for that today because it will not have done the reading. So fortunately for you, I’m not going to call on anybody. But, if you ever take the NRI Burke to Buckley class that I teach, you won’t be as fortunate.

I am here to speak about the Constitution. I think it’s fair to say that our Constitution is under attack. Consider the proposals that the progressive Left has floated: packing the Supreme Court, changing the Electoral College, adding D.C. and Puerto Rico as states, and expanding federal power to control all energy use and health care in the country.

A proposition that would have seemed unthinkable a generation ago is now gaining traction: to replace our market economy with socialism. Most of the Millennial generation prefers socialism over capitalism; in fact, 43 percent of all adult Americans describe socialism as a “good thing.” To be sure, pollsters suspect that Millennials misunderstand socialism, as they misunderstand much else (I’m sorry to keep insulting Millennials, but I do it all the time at Berkeley). Millennials seem to think socialism means being friendly. When they’re informed that socialism doesn’t mean being social, the number of supporters drops. But that doesn’t change the fact that the tide is turning. A solid bloc of Americans resent the Constitution. And even more lack the fortitude to defend it.

Who leads this progressive assault on the Constitution? It is not Joe Biden. Though much has happened in the past four years, you may remember a telling moment in one of the Democratic primary debates in 2020. The moderator asked a straightforward question: Raise your hand if you think we should increase the size of the Supreme Court. Every candidate raised his hand, except for Joe Biden. He was the only primary candidate in the Democratic Party who rejected a blatant, political attempt to pressure the federal courts to change their interpretation of the Constitution.

This attack on the Constitution runs much deeper than one president or one party. At its heart lies a disdain for our history, an ingratitude for our blessings, and a contempt for the truth. Though its proponents claim the authority of modernism, their arguments repeat attacks that the Constitution has already weathered before. A few examples may illustrate.

Consider the New York Times’ 1619 Project. It claims that our country’s Founding ideals were false when they were written. Instead of 1776 or 1789, the project claims, America’s true founding date was 1619, when the first African-American slaves arrived on American soil. The project presents American history as a one-dimensional narrative driven by the oppression of racial minorities for more than four centuries.

But this story is not original to the 1619 Project. Thurgood Marshall, the first African-American justice on the Supreme Court, said much the same thing 40 years earlier, in 1976. On the bicentennial of the American Revolution, Justice Marshall gave a speech in which he argued that the Constitution was defective from the start. He said that only several amendments, a civil war, and the momentous social transformation of the civil-rights movement had allowed the United States to attain a system of government that respects individual rights. In other words, without the bloodshed of the Civil War, the Constitution was irredeemable.

But even Justice Marshall was not saying anything new. Critiques of the Constitution are as old as the Constitution itself. Since the antebellum period, critics have attacked the Constitution for a Senate that doesn’t represent the population, for a president with excessive powers, and for an unaccountable Supreme Court that makes fundamental decisions for our society. These critiques have one thing in common: They are all true.

The Constitution is designed to be anti-democratic. The purpose of the Constitution is not to advance the will of popular majorities, but to restrain it. The Senate is an anti-majoritarian body by design. It exists to prevent the federal government from encroaching on state sovereignty. The Supreme Court, too, was never intended to be democratic. The Court exists not to implement policy instead of the people’s representatives, but to protect the rule of law from the opportunism of those representatives.

Why would Americans in 1776 and 1789 create this system of government? The Founders did not create the Constitution to enhance democracy, though it was far more representative of the people than its predecessor, the Articles of Confederation. Instead, the Framers adopted our Constitution to protect the natural rights recognized in the Declaration of Independence.

The Declaration’s words are words that we all used to know. We used to memorize them in school, back when students memorized things in school. We are founded, as declared in the Declaration, on the principle that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

The fundamental equality of all people creates the principle that the government rules only by consent. Our nation does not accept the notion that one class of people holds dominion over any other class of people. Abraham Lincoln said it best. He said, “the Declaration’s principle of Liberty” is the “apple of gold,” while the Union and the Constitution are the “picture of silver, subsequently framed around [the apple of gold].”

He said the picture was made not to “conceal or destroy” the apple, but to “adorn and preserve it.” The picture is made for the apple, not the apple for the picture. I think Lincoln got it right. The purpose of the Constitution is not to unleash democracy, but to protect our natural rights and liberties from democracy.

The Constitution’s protection for natural rights is apparent in the text. The Bill of Rights is the obvious place where the Constitution protects individual rights, and the Reconstruction Amendments further apply those rights to the states. But the Constitution protected rights before even a single amendment was added. The very structure of the national government, set out in the first three articles of the Constitution, advances and protects natural liberty. The Constitution creates a system that makes it difficult for Congress to make law, where it’s hard for the government to act without a high level of consensus, and where states — those governments that are closest to the people — make the decisions with the most direct impact on people’s lives.

Our Constitution creates the opposite of a European or Asian government, which is characterized by centralization. If you meet a police officer in Japan, and I hope you never have to, he or she works for the same government as the minister of justice or the prime minister of Japan. The same is true of France and of England. They have one single government. By contrast, the rule in the United States is decentralization. The Constitution recognizes multiple sources of political authority. The purpose of this decentralization was not harmonious agreement, but intentional conflict. The Constitution designs the federal government, in its separation of powers, and the nation and the states, through federalism to fight and oppose each other. Lawmaking will only occur when a high level of consensus exists throughout society.

James Madison said this best. He wrote in Federalist No. 51: “In the compound Republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.”

Because of this division of the separation of powers and the division of federalism, he said, “a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself.”

One last point from The Federalist Papers. Why would the Framers fear democracy as a potential attack on natural rights or individual liberties? Why has the government been instituted at all? Alexander Hamilton responded in Federalist No. 15: “because the passions of men will not conform to the dictates of reason and justice without constraint.”

When reckless movements and faddish ideas capture the mind of the people, the Constitution is there as our insurance policy. It prevents us, the government, from heedlessly adopting the latest bright, but untested, idea. It forces us to take our time and to consider, deliberate, and think before we do something significant, like make a law.

When evaluating the Constitution, take a global perspective. If you look around the world, you cannot help but agree that the Constitution works.

Think about the fate of our peers in Asia and Europe over the last 100 years. They have fought two world wars that have killed tens of millions. Russia and China alone launched terrible utopian experiments that killed additional millions of their own citizens. Countries from Britain and France to Japan have cycled through various forms of government. In the last century, they have had monarchies; they’ve had socialism; they’ve had communism; and they’ve had fascism.

Our Constitution saves us from falling prey to the latest ideology, the latest promise that we can solve all of the world’s problems with a utopian policy. In fact, I always like to tell my students that Forrest Gump contains an important lesson about government. Europe is Jenny, the girl who is always swept up by the latest craze, the latest fad. Forrest Gump is America, the simple man who stays true to a few abiding principles. Like Forrest Gump, America endures. And more importantly, it’s always there to come and rescue Europe whenever they ruin