On Monday, the Supreme Court will begin a new term. Judges are expected to consider some extremely far-reaching issues, particularly in the abortion and gun cases. But if the opinions delivered at the end of the last meeting have taught us anything, in particular the decision in Brnovich v. Democratic National Committee, which undermined section 2 of the Voting Rights Act, is this: Americans can no longer rely on federal justice to protect their basic right to vote. And given the court’s open hostility to measures to preserve American democracy, the legislation can also be futile. What’s left? Advocates who chart a way forward should think of the mentors. They would resort to extraordinary measures. They would consider amending the Constitution.
In general, I am not in favor of speculating on what long dead politicians would do if they were here now. There is too much room for error, and no way to definitively prove a particular hypothesis. However, there is plenty of historical evidence to support the claim that those who drafted and ratified our National Charter believed it was essential that the American people have the final say on its meaning. If the court is wrong, we have a civic duty to get it right, pushing our elected lawmakers to update the Constitution in a way that promotes democracy and reflects our current values.
As I write, with my co-author, in our new book, The constitution of the people, the Framers have repeatedly encountered a stubborn or capricious court, and in the most extreme cases have chosen to amend the Constitution to enshrine enduring principles and defend the popular will. Perhaps the best evidence comes from the 1790s, when many Framers were still alive and ruling. In a case known as Chisholm v. Georgia, the judges heard a plea from an executor demanding reimbursement of property provided to the state in support of the revolution. Georgia declined to respond to the lawsuit, arguing that the common law doctrine of sovereign immunity protects it from citizen lawsuits. The Court ultimately ruled that the wording of Article III – that “the judiciary shall extend to all matters … between a state and the citizens of another state” – meant what it said: that the courts federal governments have jurisdiction to hear claims for redress from Americans against states. In a premonitory opinion of 1793, Judge William Cushing advised: “If the Constitution is found to be inconvenient in practice in this or any other particular area, it is good that a regular mode be indicated for amendment.”
The Framers took this advice to heart. Less than two years after the court ruling, Congress proposed and states ratified the Eleventh Amendment, overturning the ruling and reducing the jurisdiction of federal courts, thereby ridding the new National Charter of what they saw as the one of its first faults.
Subsequent amendments dealt with much more serious issues. The Thirteenth and Fourteenth Amendments, cornerstones of the abolitionist movement, were enacted after the Civil War to address the editors’ most serious offenses: their despicable embrace of slavery and their contempt for the idea of ââequal citizenship. Notably, the Constitution did not use the word slavery up to the Thirteenth Amendment. Until the Fourteenth Amendment, it also did not establish the requirements or rights of US citizenship.
The architects of these most important amendments drafted them in response to the odious Dred Scott decision, in which the Court ruled that not only blacks could not be citizens, but that they were “beings of a lower order”, did not have “any rights which the white man was bound to respect” and could âbe legitimately and legally enslaved for his own benefit. In theory, the amendments eradicated the institution of slavery and granted 4 million black men and women the rights that the Declaration of Independence recognized as innate and indispensable. In fact, it would take another century for these promises to begin to materialize. Yet, in passing both amendments, the American people rebuked the members of our highest court and enshrined the principles of freedom, equality, citizenship and related rights into the national charter so that future generations can live. inspire it.
American citizens continued to maintain this tradition over the next century. During the progressive era, the Sixteenth Amendment moved the court ruling into Pollock v. Farmers’ Loan & Trust Co., thus enabling Congress to enact federal income tax legislation necessary to maintain modern world power. The Twenty-Fourth Amendment, ratified at the height of the civil rights era, banned the imposition of election taxes in federal elections, partially overturning the court ruling in Breedlove vs. Suttles. And the Twenty-Sixth Amendment, which sets 18 as the age for national voting, was passed and ratified in just over three months to Oregon v. Mitchell, a Supreme Court ruling that struck down part of the amended and reauthorized voting rights law. Addressing erroneous Supreme Court rulings is one of the main reasons for amending the Constitution and, as the Thirteenth and Sixteenth Amendments make clear, this can lead to a whole new era of constitutional change.
But, although there have been intense and compressed periods of constitutional change, over-restraint has more often prevailed. During these ânormalâ periods, the charter was not subject to a textual revision. Some think that we should refrain from falsifying the work of the framers. Others suggest that it is impossible to change the Constitution or think that it is wiser to devote political capital and resources to more achievable goals. None of the above is new. Throughout history, proponents of an unworkable status quo have used the language of constitutional idolatry and pessimism to oppose much-needed change.
James Madison, the father of the Constitution, envisioned that the amending clause would balance the two possible poles. âIt is also wary of this extreme facility, which would make the Constitution too changeable; and this extreme difficulty, which could perpetuate its discovered flaws. He believed, in other words, that changing the Constitution must take work. We must neither take lightly the pen of the amendment nor, at the same time, inhibit ourselves when time and experience reveal flaws in our national charter which make it incompetent. The above examples are indicative of the Framers’ expectations: a committed policy pushing for reasoned and deliberative constitutional change informed by practical experience.
What does this mean for today, especially in light of the Brnovich decision, and the decision in Shelby County v. Holder Who gutted Article 5 of the Voting Rights Law less than ten years ago? Given the judiciary’s inability to enforce federal election laws and the limitations it has placed on Congress and individual voters seeking to protect the right to vote, simple legislative changes may be a poor substitute for a constitutional amendment. explicitly granting the right to vote – a decision that more and more lawyers are championing. Despite the enactment of more than half a dozen amendments that have broadened and diversified the American electorate, our Constitution currently lacks a guarantee of universal suffrage. Affirmative right to vote for all, instead of traveling and ambitious non-discrimination principles, can help ensure that the right to vote is open to all U.S. citizens.
Another approach could relate to the power of the court itself. On this point too, discussions were not lacking. Indeed, from the ratification debates, the anti-federalist Brutus foreshadowed the advent of judicial supremacy. The Constitution could make judges “independent of the people, of the legislature and of all power under heaven,” he wrote. “Men placed in this situation will generally soon feel independent of Heaven itself.”
Today’s commentary on curbing excessive judicial intervention and flawed decision-making focuses on a range of other reasons why court reform is needed: the marked increase in the number of federal lawsuits filed ; the record number of cases on the Court’s roll; the lack of diversity on the bench, especially since 108 of the 115 judges were white males; fierce court confirmation battles and tough new constitutional tactics, such as Senate Republicans’ refusal to hold hearings for a Democratic candidate for a vacant Supreme Court seat eight months before a presidential election, while pushing a Republican candidate barely eight days before the next election.
Judge Stephen Breyer sharply criticized proposals to restore the legitimacy of the High Court, including amending the Constitution to impose limits on judicial tenure. President Joe Biden, keeping a campaign pledge, has created a commission to study the issue, although many believe the group will not approve any meaningful reform. And although judges have weighed in on the need for constitutional change in the past and presidential commissions have laid the groundwork for constitutional reform, the point is that when it comes to amending our national charter, neither neither the president nor the members of the highest court in the country has a formal role. Article V – the section of the Constitution that defines the process for adding amendments – leaves the levers of change to federal and state lawmakers, so that the people’s representatives, who are the ultimate sovereign, lead the charge in their name.
In a famous joke, Judge Robert Jackson joked, “We are not final because we are infallible, but we are only infallible because we are final.” The people have repeatedly denied this claim by amending the Constitution to correct a court that has stumbled and gone astray. Given our hyper-conservative court’s current assault on democracy and other fundamental rights, we should be the next generation of Americans to do the same.