The Anti-Constitutional Worldview of the New York Times

AMAC Exclusive – By David Lewis Schaefer

The New York Times has long regarded itself, and until the last couple of decades was widely regarded, as America’s “newspaper of record” – the first place to look for a reliable view of major news events both domestic and foreign, even more so than its rivals for that title, the Washington Post and (more recently) the Wall Street Journal. Among families that liked to think of themselves as reasonably well read like the one I grew up in, receiving the Sunday Times, with its multiple sections (the Book Review, Magazine, Week in Review, and sections on Business, Sports, and the Arts as well as the main news sections) was a major weekend event, consuming a few hours. Although its editorials were more “liberal” in the contemporary sense (that is, Progressive), the editors’ political leanings had relatively little obvious influence over the news reporting – especially the generally strong international news stories. Through the 1960s, the paper even had its own military correspondent, the distinguished Hanson Baldwin.

How “times” have changed. The Week in Review, which consisted largely of analytic articles surveying recent news developments, has been replaced by a “Review” section devoted almost entirely to opinion columns heavily tilted towards the cultural and political interests of fashionable leftists – not, of course, blue-collar workers, but rather supposedly “sophisticated” elites, some of whom may be potential customers for the multimillion-dollar townhouses and country estates advertised in the Magazine. The New York Times Business section, which once regularly featured an informative column on investing tailored towards the middle class, as well as more general financial analysis, now chiefly focuses on Wokeism in the workplace. Even the Times’s Book Review is now vastly inferior to the Wall Street Journal’s weekend Review section, which the Journal added shortly after the dawn of the present century.

But to understand perhaps the most consequential way in which the Times has changed, one need look no further than the front page of its Sunday, July 3, 2022, edition. It features two lead stories under the joint heading “Supreme Court Drives Red and Blue Americans in Opposite Directions.” The right-hand column charges the Supreme Court with tearing the country apart through its recent decisions on abortion, gun rights, and “the federal government’s ability to regulate climate-warming pollution.” The adjacent column is headed “Gridlock in Congress Empowers Justices,” and laments that “Congress has largely fallen silent” owing to a “partisan stalemate” which, thanks to “the increased use of the filibuster … has blocked almost all major legislation” in the Senate, thus supposedly enhancing the Court’s authority.

Neither story addresses the Constitutional merits of the Court’s recent decisions. Instead, the Times alleges that the Court has “veered to the right” by “increasingly insisting on clear grants of congressional authority to executive agencies” – such as denying the Environmental Protection Agency ‘s authority to regulate emissions supposedly generating climate change (since its authorizing statute gives it no such power), finding that the Centers for Disease Control and Prevention was not “authorized to impose a moratorium on evictions” (as if such a moratorium had any relation to disease control, let alone any Constitutional foundation), or holding that the Occupational Safety and Health Administration did not have the authority to require large employers to “have their workers vaccinated against COVID-19 or undergo frequent testing.”

Then there is the incessant droning in each piece about “cultural” issues like abortion and gun rights, as well as climate change, about which Jonathan Weisman, in an opinion column published in the Times’s Review section in the same issue, that the United States is increasingly divided regionally between the Northeast and West Coast, on one hand, and its “midsection and Southeast – with a few exceptions, like the islands of liberalism in Illinois and Colorado” on the other. He further alleges that “even where public opinion is more mixed,” as in Ohio, Wisconsin, Georgia, North Carolina, and Texas, the Republican grip on state legislatures has ensured “that policies conform with those of the reddest states in the union, rather than strike a middle ground.” Weisman does not explain how Republicans achieved such a “grip,” let alone supply evidence to support the claim.

In former days, the New York Times would no more regard it as a Constitutional flaw that different states should pursue different policies on issues on which the Constitution itself is silent than that federal courts should strike down excessively vague grants of authority to administrative agencies. But today’s New York Times, as clearly reflected in its twin articles on July 3, now holds itself in direct opposition to two essential features of American constitutionalism: accountability and federalism.

With respect to constitutional accountability, the Times relies on the authority of another Harvard law professor, Richard J. Lazarus, who argues that even though the Court is purporting to require Congress “to speak clearly in the interest of democratic accountability” in a case like the EPA statute, the Justices in reality are just “increasing their own power,” since they know that Congress is too evenly divided to properly address “the threat to the planet” from climate change. By contrast, Lazarus asserts, “if we had a Congress that at all reflected what the median American voter wanted, we’d have relatively aggressive climate action.”

Like the Times’s core readership these days, Professor Lazarus is confident that he (along with enlightened bureaucrats) knows what the voters want more than their elected representatives do. His outlook is reflected more broadly in a Times opinion piece published the same day by Duke Law professor Jedediah Britton-Purdy titled “The Left Must Reclaim Patriotism.” In his essay, Britton-Purdy cites factors showing an indeed alarming division of opinion in the U.S. between Republicans, 76 percent of whom, according to a 2019 Gallup poll, described themselves as “extremely proud” to be Americans, and Democrats, of whom only 22 percent expressed the same sentiment. (This was, of course, during the Trump presidency.) Even more disturbing, Britton-Purdy reports, are the findings of a recent Quinnipiac poll. When asked whether “they would fight or flee if the country were invaded,” 68 percent of Republicans, but only 40 percent of Democrats, said they would “stay and fight.”

But in Britton-Purdy’s view, the real obstacle to his goal of the left reclaiming patriotism is the way “our political system stops majority opinion from ruling,” through anti-majoritarian institutions such as the Senate, the Electoral College, and the Supreme Court. (One suspects that Britton-Purdy held a different view of the Court back when Roe v. Wade and other anti-majoritarian but “liberal” activist decisions were in handed down.) Britton-Purdy contends that American democracy can only be “saved” when we convert to a system of strict majority rule – just the thing the Founding Founders aimed to moderate.

Like so many of America’s law professors, the Times staff evidently need an education in the true principles of American Constitutional democracy, including an understanding of why the Founders composed our Constitution as they did. (For starters, they might try studying the Federalist Papers.)

In another example of the Times’ estrangement from core constitutional principles, in the same July 3 issue, the Times carried a full-page ad, apparently in reaction not only to the Supreme Court’s Dobbs decision overturning Roe v. Wade but also to its decision in Kennedy v. Bremerton School District, upholding the right of a football coach to engage in private prayer (which team members were allowed, but not at all coerced, to join at the end of a game), from the Freedom from Religion Foundation, titled “I’m Secular and I Vote.” The Foundation’s program, in support of what it calls “America’s secular Constitution,” mandates that we “keep religion out of government and social policy,” “out of public schools,” as well as out of people’s “personal lives,” while using tax dollars “only for evidence-based, not faith-based, purposes” (emphasis in original).

The Foundation apparently believes that “science” proves that having an abortion is a purely fact-based decision, without any moral component to be considered, and warns of the need to preserve a strict governmental neutrality regarding religion, but actually hostility towards the public expression of religious beliefs. The tacit endorsement Times writers themselves give to such antireligious hostility (as in their critical treatment of the Bremerton decision) can only widen America’s civic divisions rather than fortify our political and moral unity, to which statesmen George Washington and Abraham Lincoln along with Alexis de Tocqueville believed religion made a critical contribution.

Happily, this observer can bear witness that the beautiful vision of America’s founders is still alive and well among a substantial portion of our citizenry. On July 4, I attended an AAA baseball game in a gorgeous new stadium in Worcester, Massachusetts, the city I have lived in for the past 46 years. It is a growing city, the second largest in New England, with a population now over 200,000. Worcester is a town with a growing tech sector and some eight colleges, but also with a large blue-collar population, much of it Latino. Like most of Massachusetts, Worcester is a heavily Democratic community. Yet at the game, I joined a multi-ethnic crowd of diverse ages and countless incomes who stood proudly as a young Latina belted out “God Bless America,” and then continued their display of respectful attention as two ex-servicemen, a corporal and a sergeant who had served in America’s recent wars in the Middle East, were introduced and warmly applauded. And of course the evening culminated in a glorious fireworks show paid for by a local bank. There was certainly no lack of patriotism here – nor, I am confident, at similar observances of Independence Day around the country. (The live audiences at AAA ball games are probably more representative of the electorate at large than those found at major league contests, simply because ticket and parking prices are a lot less expensive at the former.)

Although most of the people attending that July 4th game may not be able to formulate it precisely, most of them probably possess a greater intuitive understanding of how our rights depend on such political principles as fidelity to a written Constitution, limited government, the separation of powers, and federalism than do the sort of ambitious intellectuals who populate the Times news and op-ed pages. Nor do most of them give evidence of the kind of resentment of economic inequalities (fluctuating as they do over time) that Britton-Purdy wishes they would.

Contrary to Britton-Purdy, the real divide in today’s America isn’t a geographic one (as it was during the Civil War) but rather a growing split between a large portion of the population, Democratic and Republican, native-born or immigrant, who take great pride in their country, and a minority of academics, journalists, media personalities, and political demagogues whose positions give them outsized influence, and who readily demean our Constitutional regime when it doesn’t conform to their policy preferences. (The very meaning of federalism is that on issues like abortion on which the Constitution is silent, different states will adopt different policies in response to the wishes of their voters.)

Regrettably, such individuals are in a position to lower the public estimation of the federal judiciary, along with the principles of our Constitution, by misrepresenting what judges have done – for instance, by giving the public the impression that in its Dobbs ruling, the Supreme Court somehow made abortion illegal, rather than giving the issue back to the states, where it belongs under the Constitution. Given the unprecedented freedom that America has afforded them, such ostensible champions of political liberty ought to be ashamed.

If some voters are expressing decreasing respect for our Constitutional system, given its increasingly anti-Constitutional worldview one can hardly absolve the New York Times of its share of responsibility.

David Lewis Schaefer is a Professor of Political Science at College of the Holy Cross.