VSCommon sense suggests that America should reform its old constitution. The country, after all, is very different from what it was when it was founded in the 1780s and 1790s. The Electoral College may have made sense at the dawn of the democratic era, but now it is. embarrassment, violating the fundamental principle that every vote in presidential elections should count as any other.
Having no experience with the mass democracy they created, the constitution-makers hardly thought about how best to prevent financial interests from corrupting the election results. And they had no idea how issues of sex and sexuality would one day rock their republic. Constitutional amendments adopted today could abolish the Electoral College, reduce the influence of private (and especially black) money on politics, and establish an abortion right or a broader right to sexual privacy. and other.
When we ask, however, whether any of these amendments have a reasonable chance of becoming law, the answer is no. The explanation is as mind boggling as it is simple: for all intents and purposes, the constitution cannot be changed. The drafters set an incredibly high bar for review: two-thirds approval of an amendment proposed by each house of Congress, followed by majority approval of three-quarters of state legislatures. Imagine a Brexit vote crossing that double threshold. It never would.
The US constitution has only been amended 27 times in its 230-year history. The significant total is actually a lot less. The first 10 amendments to the “Bill of Rights” should not be considered as amendments, as they were part of the initial debate and ratification of the constitution in the years 1789 to 1792. The Three Civil War Amendments (1865 -1870) were adopted under the unique circumstances of internal warfare, secession and reconstruction. Two canceling amendments to the ban (the first authorized an alcohol ban and the second repealed it 14 years later) inflate the official tally. A few other amendments dealt with matters too minor to discuss. The total number of significant amendments adopted in circumstances other than civil war then quickly shrinks to one figure: about one every 25 to 30 years. It was not until the progressive era (1900-1920) that Americans found a way to make amendments a useful political tool: the direct election of senators, women’s suffrage, and the right of Congress to levy income taxes were all written into the constitution at that time. No previous or next generation has found how to replicate the success of the progressives. Even Antonin Scalia, the great believer in the genius of the constitution as it was originally written, admitted that a constitution written in stone serves no one well.
The immutability of the constitution is of course not a new problem. Liberal and conservative jurists of all generations have creatively reshaped the constitution in new forms to cope with new realities. Consider Louis Brandeis, who insisted that the constitution be treated as a living document whose principles should address issues “our fathers could not have dreamed of.” According to Brandeis, the judges of the twentieth century were obliged to adapt the principles of the eighteenth century to new circumstances and, sometimes, to discern in these principles rights not yet enumerated. To think otherwise, Brandeis said, would turn the constitution into a series of “helpless and lifeless formulas.”
If the Supreme Court has sometimes sought and obtained moments of brilliance Ã la Brandeis, it has also suffered from periods of pride or fragility when judges, in the pursuit of a political agenda or a mistaken sense of principle , forgot where the ultimate source of their authority lay: not with the statutes themselves, or with the framers of the constitution, but with the American people.
Between 1789 and 1791, large citizens’ assemblies in nine of the 13 states voted to both ratify and amend the document the drafters gave them. This ratification process gave meaning to the critical preamble to the constitution: âWe, the people of the United Statesâ¦ order and establish this constitution for the United States of America. The Supreme Court must sometimes rule against the majority opinion, which can be reckless, even tyrannical. But if the tribunal repeatedly ignores or, worse, displays contempt for deep and enduring popular beliefs, it is risking not only its own authority, but that of the entire system of government of which it is a part.
Two historical examples illustrate this point. The first was the famous Dred Scott decision of 1857, when Chief Justice Roger Taney and a large majority of judges said on specious grounds that African Americans, enslaved or free, did not and never would be entitled to American citizenship and therefore to constitutional rights and privileges. The indignation aroused in the north by this decision precipitated America’s descent into civil war.
The second moment came in the 1930s, when four Conservative judges were preparing opinions to repeal two pillars of Roosevelt’s New Deal, the Social Security Act and the National Labor Relations Act. These “Four Horsemen”, as they were called, were opposed by a progressive bloc made up of Brandeis and two other judges wishing to uphold the New Deal. In the middle were two moderates, Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. If either or both had joined the Cavaliers, they could have plunged America into a second civil war, this one between capital and labor.
The war scenario was not far-fetched. The Americans had declared their support for the New Deal by giving Roosevelt a resounding electoral victory in 1936; they would not have allowed the Supreme Court to frustrate the will of the people by overturning the New Deal.
To save his legislative agenda, Roosevelt threatened to pass a law through Congress that would allow him to “fill” the tribunal with his own appointees. Meanwhile, members of the United Auto Workers had occupied several General Motors factories in Michigan, forcing one of the most powerful companies in the world to shut down production. Staying for six weeks, the âseatedâ strikers challenged mayors, a governor, judges and a president to call the police, national guard or the US military to expel them.
In this time of industrial confrontation and looming political crisis, Hughes and Roberts both signed two pivotal decisions that secured FDR’s New Deal. Roberts insisted over the following years that changing case law, not political pressure, shaped his decision. Hughes took a different pose. He seemed to understand that the judiciary, although independent, was part of a political system established to make the people sovereign. And that at certain crucial moments, the will of the people had to be honored. If it could not be done by a constitutional amendment, it should be done by other means.
The Supreme Court now faces yet another critical test of its legitimacy, as it prepares to deliver crucial decisions this year on abortion, gun rights and government funding for religious schools. It is likely that important âvoting rightsâ cases will soon be brought to court as well. The tribunal must render its decisions in circumstances which have already seriously damaged its reputation. I’m referring, of course, to the real theft of American politics: not the 2020 presidential election, but Mitch McConnell’s hijacking of two Supreme Court appointments to fulfill the GOP’s 40-year quest for an impregnable Conservative majority. . The beneficiaries of that theft – Associate Justices Neil Gorsuch and Amy Coney Barrett – gave the Tories their biggest majority on the pitch in 90 years.
Will this court, and its swollen Republican majority, succumb to Taney’s temptation in Dred Scott, and attempt to settle divisive issues once and for all in a way that meets the wishes of their most strong supporters? Or will the court follow Hughes’ path and recognize that this is a time when considerations of the âgeneral welfareâ of the American people must enter into judicial deliberations?
Chief Justice John Roberts has proven himself to be a Hughes man, able to put the country ahead of the party (as he did in his critical vote for the Affordable Care Act). But McConnell’s machinations took control of the tribunal from Roberts’ hands. Clarence Thomas, Samuel Alito and Neil Gorsuch seem relentless in their conservatism. The progressive caucus of Stephen Breyer, Sonia Sotomayor and Elena Kagan is too small to accomplish anything on its own, even with Roberts as an ally every now and then. That leaves the future of that tribunal in the hands of Barrett and Trump’s third person, Brett Kavanaugh. Does he have the integrity or the vision to move the court and the country to a better place? We will see.
Gary Gerstle is Mellon Professor of American History at Cambridge. His new book, The Rise and Fall of the Neoliberal Order, will be released in April. He is a columnist for the Guardian US