Individuals may threaten the rule of law, but ideas pose a deeper, more enduring danger. People die, but ideas persist across generations, shaping minds and reshaping societies. Today, progressivism stands as the gravest threat to the rule of law in our constitutional democracy.

Progressivism’s challenge to the American legal order arises not from misunderstanding but from a deep-rooted opposition to the Constitution’s original design. The Constitution’s separation of powers and its layered legislative process are deliberate impediments to the rapid societal changes progressives desire. Progressives rally behind the banner of equality and have come to see rights, such as property and even free speech, as pretexts for inequality, because individuals possess varying abilities to wield them. They fear these rights can act like levees holding back the flow of political transformation, empowering citizens to resist the sweeping reforms that progressives advocate.

Progressives also view the amendment process as an impediment to their vision of justice. The process, which demands substantial supermajorities in Congress and state legislatures, was designed to preserve legal continuity and societal stability by ensuring a broad consensus behind the Constitution. By attempting to sidestep Article V—the deliberate process for constitutional amendment—and instead pressuring the judiciary to “update” the Constitution, progressives risk unraveling the stability and legitimacy that the rule of law seeks to protect.

At its core, the progressive left’s attack on the Constitution undermines the very foundation of American democracy: the sovereignty of the people. As historian Gordon Wood has shown, the genius of American constitutionalism lies not merely in rejecting monarchy but in placing ultimate authority in the hands of the people, not their rulers. The Constitution represents this popular sovereignty by setting firm limits on government power. Allowing any branch of government—whether Congress, the presidency, or the judiciary—to rewrite these limits at will subverts this fundamental act of self-government.

Even more troubling, as political scientist Keith Whittington has observed, it denies the people their ongoing sovereignty—their right to amend the Constitution as they see fit. The Founders designed Article V to ensure that ultimate authority always rests with the people, not with their temporary agents. A Supreme Court that seeks to enforce the Constitution as written, thus safeguarding popular sovereignty against temporary political whims, naturally becomes the target of progressive ire.

It is essential to distinguish the progressive agenda from that of traditional liberals. Liberals, while favoring an expanded role for the federal government, have generally been more willing to work within an established constitutional framework, particularly now that precedent has broadened federal powers. In many instances of recent progressive overreach, liberals have initially voiced concerns about attempts to bypass constitutional limits. As progressives have become increasingly dominant on the left, however, liberals have lost the political clout to prevent these extreme positions from becoming mainstream.

A clear example of this progressive ascendancy can be seen in the arc of immigration policy over recent administrations. Initially, President Barack Obama, our first president to have taught constitutional law since William Howard Taft (and no conservative), recognized that he lacked the legal authority to unilaterally enact the sweeping changes progressives demanded. This stance reflected a traditional liberal caution about expanding executive power. Yet, under mounting pressure from progressives, Obama reversed his position, implementing policies that even he had once declared beyond his legal authority.

First, Obama introduced the Deferred Action for Childhood Arrivals (DACA), which allowed most illegal immigrants who had arrived as children to stay and work in the United States. Then, in response to further progressive pressure, he created the Deferred Action for Parents of Americans (DAPA), permitting illegal immigrants with children born in the US to remain as well. President Biden, facing similar progressive demands, has expanded these policies further, granting spousal privileges to illegal immigrants married to American citizens.

As Michael McConnell has pointed out, these actions represent a clear violation of the Constitution’s Take Care Clause. Article II, Section 3 requires the president to “take Care that the Laws be faithfully executed.” This clause reflects the Framers’ concern with preventing executive overreach, a fear rooted in the Glorious Revolution, when Parliament asserted its supremacy over the King’s prerogative powers. Just as James II was deposed for attempting to dispense with laws he found inconvenient, the Take Care Clause was designed to prevent presidents from wielding similar dispensing powers, turning them from law executors into lawmakers.

To be sure, prosecutorial discretion allows for pragmatic enforcement decisions in light of limited resources. In immigration enforcement, it is reasonable to defer action in individual cases due to practical constraints or repatriation issues. But DACA, DAPA, and Biden’s spousal policies go far beyond this. These programs establish broad categories of individuals to whom immigration laws no longer apply, determined by class-wide factors—such as age at entry or parental status—rather than by resource limitations or foreign policy concerns. 

Another defining aspect of these immigration policies is that they do far more than decline to deport broad classes of immigrants.

They confer a status—“lawful presence”—which grants recipients the right to work here. Granting a new status is not an exercise of prosecutorial discretion. Through unilateral executive action, presidents have rewritten the law, exercising, as McConnell notes, a modern form of the dispensing power.

Imagine if a president of opposing sensibilities (a reader may readily call one to mind) announced that his administration would no longer prosecute wealthy individuals who paid only 20 percent of their legally owed capital gains tax, rather than the full amount. And imagine further that he justified this because he failed to pass a sweeping tax cut for the rich through Congress. Such a move would be condemned by liberals and originalists alike as an unconstitutional overreach, a blatant attempt to exercise his own dispensing power—allowing the president to suspend or alter legal obligations without Congress’s involvement arbitrarily. This hypothetical underscores the danger posed when the executive oversteps its constitutional bounds. The erosion of the separation of powers weakens the system of checks and balances that preserves the rule of law, regardless of the administration in power.

Another stark example of the progressive push against traditional liberalism is found in H.R. 1, an electoral reform bill that was the top priority of the Democratic Senate in 2021. This bill includes a provision that would impose onerous new disclosure requirements on any organization urging public officials to adopt a policy position. Specifically, it would force the CEO of the organization to appear on camera to declare that they approve the message. By making it more burdensome to speak out, progressives aim to stifle political discourse, a tactic designed to suppress dissent under the guise of accountability.

Traditional liberal organizations like the ACLU have objected, recognizing the threat this poses to free speech. They rightly argue that there is no compelling justification for forcing contributors to policy messages to reveal their identities and waste precious time that could be used for their message. Anonymous speech has been a cornerstone of American democracy since the Founding, as evidenced by the anonymous authorship of The Federalist. Progressives’ attempts to undermine this tradition highlight their increasing willingness to sacrifice fundamental freedoms in pursuit of their goals.

Even more troubling is the progressive use of governmental power to suppress what they deem “disinformation.” Mark Zuckerberg, a traditional liberal, recently revealed that the Biden administration pressured Facebook to remove political and policy posts that he would have otherwise allowed. This is not an isolated incident. The ACLU, reflecting its longstanding commitment to civil liberties, successfully represented the NRA when a progressive New York State official tried to coerce New York banks into cutting ties with the group due to its gun advocacy. Such examples reveal the growing influence of progressives who, unlike traditional liberals, are willing to use the machinery of government to silence opposing viewpoints—jeopardizing the very freedoms liberals once championed.

The progressive use of government power to coerce private actors into censoring speech behind closed doors flows directly from core tenets of progressive ideology. Progressives believe that speech from the “wrong” people can hinder the societal changes they deem urgent. A key distinction between traditional liberals and progressives is the latter’s willingness to suppress opposing views. The replacement of old-school liberals by progressives in academia has fueled the culture of rigid political orthodoxy that now dominates most college campuses. Through actions that pressure social media platforms to censor messages and banks to cancel customers, progressives aim to export this campus culture to the rest of American society.

The most audacious attack by the progressive left, however, is on the judiciary itself. Frustrated by rulings that do not align with their agenda, progressives are now seeking to alter the composition of the Supreme Court. This assault on judicial independence threatens the very foundations of our constitutional order. The Court has long been a bulwark against executive overreach and political extremes, but progressives view it as an obstacle to their vision of rapid societal transformation.

President Biden initially resisted these calls to interfere with the Court, creating a commission to study possible reforms. The commission, composed of a diverse and unwieldy membership, was widely seen as an effort to bury the issue—a classic Washington tactic to avoid taking direct action. Biden, who campaigned as a traditional liberal, appeared at first to be following a pragmatic path, avoiding the dangerous precedent of tampering with the judiciary.

Yet, under increasing pressure from the progressives, President Biden has now endorsed congressional efforts to impose 18-year term limits on Supreme Court justices. These term limits would apply retroactively, conveniently removing three Republican-appointed justices—Clarence Thomas, Samuel Alito, and possibly Chief Justice John Roberts. Such a move would dismantle the Court’s role as a check on both executive overreach and progressive overreach. If successful, this maneuver would unravel the stability of our legal system and undermine the institutional integrity upon which our republic depends.

Biden unveiled these proposals in a speech that sharply criticized recent rulings, reflecting the deep hostility progressives harbor toward the Court. But the Constitution does not allow justices to be removed for their opinions. It guarantees that justices shall hold office during “good behavior,” a provision long understood to grant life tenure unless a justice is impeached. The proposed term limits seek to circumvent this constitutional protection by allowing justices to retain their title but limiting their cases to trivial matters, such as state water disputes. This is a thinly veiled attempt to render the judiciary subservient to progressive political goals.

This proposal is a transparent evasion of the Constitution. Justices are appointed to serve in full, not as second-class “junior varsity” members of the Court. The attempt to limit their authority while keeping them nominally in office is a blatant subversion of both the text and spirit of the Constitution. It masquerades as compliance while undermining the very foundations of judicial independence.

One strong indication that such proposals are inconsistent with liberalism comes from the Biden administration’s actions on the international stage. Pursuing its foreign policy goals of maintaining liberal democracy around the world, the administration has criticized judicial reforms in Israel and Poland aimed at weakening the independence of their Supreme Courts, including measures to force early retirements of justices. This contradiction highlights the divide between the liberal tradition and the progressive agenda.

The threat posed by progressivism to the rule of law is profound and dangerous. Nothing demonstrates the power of today’s progressive movement more than the inability of liberals to prevent these radical proposals from becoming the defining approach of their party’s constitutional vision. Just as the right has consolidated around preserving the original meaning of the Constitution, the left is coalescing around a rejection of some of its most fundamental principles. We now face not only political polarization, but a growing jurisprudential divide that threatens the constitutional stability of the republic itself.