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Amy Coney Barrett’s confirmation is a sham, but it is one the Constitution allows. There’s only one way out of this crisis: we must amend.
“We have the votes,” Mitch McConnell declared about Amy Coney Barrett’s seemingly unstoppable confirmation as a Supreme Court justice. In response, Democrats have called the jammed-through proceedings a “sham” and have sought to show the American people that what’s happening is not normal. Yet what does a “normal” appointment of a Supreme Court justice look like? The COVID-19 pandemic is admittedly abnormal. Barrett’s nomination and confirmation events have exposed participants to COVID-19. And given the imprudence of the hearings during a pandemic, many suspect that the rush to confirm Barrett before November 3 is because Trump anticipates the election could be decided by the Court.
By design, the Constitution empowers the Senate, the president, and the judiciary to ignore the will of most of the American people.
But if Justice Barrett’s confirmation is an undemocratic sham, it is one that the Constitution allows. As COVID-19-infected, unmasked Senate Judiciary Committee member Mike Lee tweeted, “We are not a democracy.” With his pocket Constitution in tow, he noted that the word “democracy” never appears in the Constitution.
And he’s right. By design, the Constitution empowers the Senate, the president, and the judiciary to ignore the will of most of the American people. The Senate, unlike the House, is blatantly undemocratic, overrepresenting citizens who live in small states by allocating them the same number of Senators as those who live in larger states. The presidency can be unrepresentative of the majority because the Electoral College allows for presidents who lost the popular vote (such as Trump) to assume office and exercise tremendous power. One such power is appointing the judiciary. And the judiciary, too, threatens democracy in two ways: the Constitution entitles judges to lifetime tenure, giving them power to shape the law that governs generations of people. And, since Marbury v. Madison in 1803, federal judges have assumed the power to strike down laws enacted by democratically-elected legislatures. These aspects of the Constitution are not democratic and were not meant to be.
Still, though the word “democracy” does not appear in the Constitution, and some of its provisions are expressly undemocratic, the text begins with “We the People.” During Barrett’s confirmation hearings, Senator John Cornyn (R-TX) asked her why the people would surrender the power to govern themselves to a Constitution and nine judges in black robes. Barrett replied that the judge's job was to apply the law as written by lawmakers, who are elected by the people. To this, Senator Cornyn added that the people—through Congress and state legislatures—could always amend the Constitution if they disagreed with a judicial interpretation.
By that reasoning, the people’s power to amend the Constitution renders it democratically legitimate. But, in fact, the people do not hold the power to amend the Constitution: the amendment rule is one of the Constitution’s undemocratic features. Article V requires both chambers of Congress to adopt a constitutional amendment by two-thirds vote, thus giving the Senate veto power over an amendment. The Senate has used this power on many occasions, for example, to block the women’s suffrage amendment before finally adopting it in 1919. By giving equal votes to states regardless of their population, the Senate can halt an amendment even if most Americans support it.
And the equal representation of states in the Senate is locked into the Constitution more firmly than other provisions. It cannot even be changed by the usual amendment rule requiring two-thirds of Congress and ratification by three-fourths of the states. Article V stipulates that any change to this provision must be approved by every single state, not only three-fourths.
• • •
When unelected judges strike down laws that the people want, the people can theoretically overrule the judiciary by amending the Constitution. But the Constitution makes the amendment process dependent on a large proportion of senators and an even larger proportion of state legislatures.
We should not misconstrue the success of the midcentury Court: the few bright moments of inclusive constitutionalism, from Brown to Roe, did not make our Constitution inclusive and democratic.
In rare instances, and in spite of the difficulty, there have been amendments passed in direct response to Supreme Court rulings. For example, in the end of the nineteenth century, the Supreme Court ruled in Pollock v. Farmers’ Loan and Trust Company against legislation imposing an income tax to redistribute wealth. The Sixteenth Amendment overcame this decision in 1913 by revising the Constitution’s text to give Congress the power to impose a federal income tax.
Often, though, such attempts fail. When judges struck down laws passed by the states and federal government from 1905 to 1937 that would protect the health and welfare of workers—such as laws guaranteeing minimum wages and maximum hours for women—Congress responded by proposing additional amendments, such as the Child Labor Amendment. But that amendment, which would have given Congress the power to regulate child labor, was not ratified by the requisite number of states.
When the Supreme Court struck down a law guaranteeing women’s minimum wages, Adkins v. Children’s Hospital of D.C., Florence Kelley, a social reformer who led the battle for the Child Labor Amendment, responded that the Supreme Court needed women justices. Kelley also suggested the size of the Supreme Court be increased to counterbalance the life-tenured justices who were striking down legislation to protect the welfare of working people.
But both the Child Labor Amendment and the “court-packing” proposals collapsed when the Supreme Court began, in 1937, to rule to preserve labor legislation. It appeared that liberals and progressives no longer needed to propose amendments to protect their constitutional vision because the Court now shared it. And, for a while, that was at least partly true. Brown v. Board of Education (1954), outlawing racial segregation by the government, nourished a midcentury faith that the Constitution could really work for everyone—even the disempowered members of society and those who were not considered full persons at the Founding. After Brown, the Supreme Court delivered additional rulings that remain sacrosanct to liberals and progressives. Democrats fought tooth and nail to preserve Roe v. Wade, Obergefell v. Hodges, and the 2012 decision upholding the Affordable Care Act in the Barrett hearings.
The problem with the left’s reliance on the Court is that the Court can always swing back the other way if the balance of justices changes, as it is now poised to do. Though the Affordable Care Act was salvaged by five justices under Congress’s power to tax in 2012, national health care policy may now have no viable future. A Court employing an originalist approach to the Constitution may fail to interpret the Commerce Clause as authorizing the entirety of the modern regulatory state.
Conservatives often borrow progressives’ constitutional icons—the embrace of Martin Luther King, Jr., by the right is one striking example of this. Likewise, in an effort to obscure how dramatically Barrett’s appointment is likely to shift the Court, Justice Ruth Bader Ginsburg was barely buried when Barrett’s supporters appropriated Ginsburg’s “Notorious” moniker, producing “Notorious ACB” merch in an apparent attempt to highlight what the two women had in common. Conservatives never questioned the assumption that RBG’s replacement should be a woman. Barrett’s Senate supporters and President Trump have repeatedly emphasized Barrett’s trailblazer status as the first mother of school-age children—and a mother of Black children, too—to join the Court. And, during the hearings, Lindsey Graham noted the challenges of being a conservative woman or a conservative “of color.” Nobody should be fooled by the Republicans’ appropriation of identity politics. Judicial conservatives will not embrace inclusion as a constitutional project.
But likewise, we should not misconstrue the success of the midcentury Court: the few bright moments of inclusive constitutionalism, from Brown to Roe, did not make our Constitution inclusive and democratic. And with Justice Ginsburg’s death, that game is over. So now what do we do?
• • •
In the twenty-first century, the U.S. Constitution is an anomaly. In other countries, constitutions create parliaments and electoral systems that are designed to represent the people proportionately. Other constitutions provide for constitutional courts that have judges appointed for limited terms with limited powers to invalidate legislation; not all judges can invalidate legislation in any ordinary case or controversy. Other constitutions have amendment procedures that directly involve citizens—or at least refrain from entrenching unrepresentative institutions that hold veto power over amendments that people might want.
The current consolidation of the Supreme Court’s conservative majority is the culmination of a long-churning threat to constitutional democracy. We need constitutional reform now.
The urgency of constitutional reform is now obvious. The current consolidation of the Supreme Court’s conservative majority is the culmination of a long-churning threat to constitutional democracy that surfaced with Bush v. Gore in 2000, when the Court decided a presidential election by stopping the recount of people’s votes. A democratic constitution should empower the people, as equals, to govern themselves through legislation. Under a democratic constitution, the people’s elected representatives would legislate to establish justice, to promote the general welfare, and to secure the blessings of liberty to ourselves and our posterity (to borrow a few words from the Constitution’s Preamble, which judges have not enforced).
Constitutional reform should begin with adding avenues to Article V for changing the Constitution that empower the people with a direct role. It is a common feature of modern Constitutions—including those of most states in the United States—to permit citizens to propose amendments by ballot initiative or to ratify them by referendum. Furthermore, the repeal of our Constitution’s most obsolete institution—the Electoral College—is long overdue.
Moreover, the present undemocratic “sham” of the Senate and president appointing life-tenured judges suggests that it’s time to redesign our Constitution’s most undemocratic institutions, the Senate and the judiciary. Once the lawmaking bodies and the amendment process are made representative, amendments to clarify the scope of Congress’s legislative power under the Commerce Clause might then be considered.
Regardless of who wins in November, it is clear that the Constitution won’t save American democracy. But amending it might, if We the People can ever manage to.
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