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How Democracy May Survive the Constitution

Among our democracy’s enemies, foreign or domestic, is a document ratified in 1789: the United States Constitution. The power the Constitution gives to the states, its provisions that favor minority rule, and the difficulty of amending it may allow the Republican Party to institute authoritarian, one-party rule, all the while claiming to respect “the supreme law of the land”. 

Two law professors, Ryan Doerfler and Samuel Moyn, argue that it’s time to do something about our broken Constitution: 

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past.

Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.

In making calls to regain ownership of our founding charter, progressives have disagreed about strategy and tactics more than about this crucial goal. Proposals to increase the number of justices, strip the Supreme Court’s jurisdiction to invalidate federal law or otherwise soften the blow of judicial review frequently come together with the assurance that the problem is not the Constitution; only the Supreme Court’s hijacking of it is. And even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism.

Since the Supreme Court began to drift right in the 1970s, liberals have proposed better ways of reading the Constitution. [Meanwhile,] the conservative Federalist Society engaged in a successful attempt to remake constitutional law by brainstorming ideas, creating networks of potential judges and eventually helping to guide the selection of President D____ T____’s nominees…. With the death of Ruth Bader Ginsburg, the consolidation of right-wing control of constitutional law and the overturning of Roe and other disasters this term — the damage has only worsened.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action.

Sometimes reclaiming the Constitution is presented as a much-needed step toward empowering the people and their elected representatives. In a new book, the law professors Joseph Fishkin and William Forbath urge progressives to stop treating constitutional law as an “autonomous” domain, “separate from politics.” In contrast with earlier efforts among liberals, which, as Jedediah Purdy put it in a 2018 Times guest essay, put forward a “vivid picture of what judges should do with the power of the courts,” such exercises in progressive constitutionalism call on Congress and other nonjudicial actors to claim some amount of authority to interpret the Constitution for themselves

It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.

No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of anti-politics. It requires the substitution of claims about the best reading of some centuries-old text or about promises said to be already in our traditions for direct arguments about what fairness or justice demands.

It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.

By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.

After failing to get the Constitution interpreted in an egalitarian way for so long, the way to seek real freedom will be to use procedures consistent with popular rule. It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now.

In a second stage, though, Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears.

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “council of revision” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.

In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

A Footnote to “How To Fix a Lawless Supreme Court”

Two of the three law professors I quoted in this earlier post believe the Constitution wouldn’t permit legislators to overrule a state’s voters and select their own slate of electors for the Electoral College, after the voters had already voted for president (or possibly without allowing the voters to vote at all). Leah Litman and Katherine Shaw briefly but forcefully argue this in a law journal article, “Textualism, Judicial Supremacy and the Independent State Legislature Theory” [p. 4].

The Independent State Legislature Theory (ISLT) is a fanciful idea being pushed by some Republicans that would give state legislatures total control over their state’s Electoral College votes. Even some members of the Supreme Court seem to like the idea, since it would allow gerrymandered legislatures in states like Wisconsin and North Carolina to help elect Republican presidents, regardless of who won the presidential election in their state. This is what Litman and Shaw say about it:

We do not offer a direct critique of a potential scenario in which a state legislature, relying on Article II [of the Constitution], seeks to assign to itself the power to directly appoint presidential electors, including after voters have cast their votes. That would, without doubt, represent one of the most high-stakes, antidemocratic, and lawless contexts in which a version—to be sure, a fringe version—of the ISLT might be deployed.

But, as far as we understand the rationales for such a move—which was reportedly considered and urged by a number of T____ advisors and supporters, including Ginni Thomas, in the aftermath of the 2020 election—they do not entail claims that state entities have misinterpreted state laws. They rest instead on the distinct claim that state legislatures’ authority to prescribe the method of appointing presidential electors is plenary and unconstrained by basic notions of due process, democracy, or constitutional protections of the franchise. As profoundly misguided as such a claim is, debunking it is not our project here. Our focus is the independent state legislature theory, not its warped variant, the anti-democratic state legislature theory—which might be better described as the state-legislature-as-the-end-of-democracy theory.

I hope the Supreme Court Six agree with the professors (and the rest of the sane legal community) when the justices rule on Moore v. Harper in their next term. Given their recent track record, there’s no guarantee that they will.

How To Fix a Lawless Supreme Court

The Judiciary Act of 1869 “provided that the Supreme Court of the United States would consist of the chief justice of the United States and eight associate justices [and] established separate judgeships for the U.S. circuit courts”.

There were nine circuit or appellate courts in 1869. The US population was around 38 million. Now there are thirteen circuits. The population is 338 million. We’ve also got a lot more laws and lawyers. A simple act of Congress, signed into law by the president, could add four justices to the Supreme Court, one for each circuit. Given the Court’s additional workload, simple arithmetic and common sense support adding four Supreme Court justices.

An added benefit would be that the president could nominate and the Senate could approve four justices who respect the Constitution and legal precedents; who don’t want to promote Christianity, patriarchy, white supremacy, plutocracy and the gun culture; and who don’t want to give corporations license to destroy the environment. In other words, seven honorable justices vs. the six dishonorable ones we have now.

I think that’s the best way to fix a lawless Supreme Court, although there are other possibilities (all, of course, assuming a Democratic House of Representatives and at least fifty Democratic senators go along).

Paul Waldman explains how states like California and New York are already working on new licensing requirements and the wide-ranging designation of what the Republican majority called “sensitive places” where guns can be prohibited:

[When you say] “the Supreme Court says I have the right to carry around this lethal instrument giving me the ability to murder anyone I encounter in an instant”, the rest of us are more than justified in responding: “Yes, that’s what the Supreme Court says. But we will take steps to protect ourselves from the danger you and other gun owners pose”….You’ll be able to get your guns, but just as you have to show you can operate a motor vehicle safely before getting a driver’s license, you’ll have to satisfy some requirements before getting a gun permit.

And just like you can’t drive your car on sidewalks or in grocery stores, you can’t take your gun anywhere you want. No doubt the Supreme Court Six will rule in favor of insanity, but, as Mr. Waldman says, some laws will survive, the legal process could take years and, meanwhile, lives will be saved.

Jamelle Bouie has written two columns on the same subject this week. From his second:

[Article 3, section 2 of] the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.” [But] the court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction.… It can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.

He then discusses the “Guarantee Clause” (Article 4, section 4″, which says that “the United States shall guarantee to every State in this Union a Republican Form of Government”. A republic is generally considered to be a state in which supreme power is held by the people and their elected representatives, not by a monarch. Interestingly, courts have been reluctant to specify exactly what a republican form of government is, leaving that decision to Congress. Mr. Bouie continues:

[But we do have] Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, … and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”

This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”

A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.

 As Mr. Bouie says in his first column:

The Supreme Court does not exist above the constitutional system… In the face of a reckless, reactionary and power-hungry court, Congress has options….The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

It’s almost impossible to imagine the 50 Democrats in today’s Senate all having the courage and understanding to seize the moment and reform the Supreme Court (one of them who’s against reforming the filibuster is rumored to have killed a proposed surtax on incomes over 10 million dollars, I suppose because of her support for the working class).

But it looks like a terrible crisis may be approaching. Three law professors write in today’s Washington Post about a case the Court has agreed to hear later this year, Moore v. Harper:

Just three years ago, a 5-to-4 Supreme Court prohibited federal courts from addressing whether extreme partisan gerrymandering violates the Constitution. But don’t worry, the court said, state courts can curb the practice if they conclude it violates state constitutions.

Harper invites the Supreme Court to go back on that promise. This invitation is based on an unsupportable legal claim known as the independent state legislature theory (ISLT). The theory would disable state courts from protecting voting rights in federal elections.

In theory (and given the recklessness of the Republican majority), the Court might rule that state legislatures have absolute authority to determine how their states vote for president. State legislators could ignore the voters and appoint whoever they wanted to represent their state in the Electoral College.

The outcome in 2024 is a virtual clone of the 2020 election: Biden carries the same states he did that year and DeSantis gets [the rest]. Biden is going to the White House for another four years.

Until the announcement comes out of Georgia. Although Biden won the popular vote in Georgia, their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis.

We then hear from five other states with Republican-controlled legislatures where Biden won the majority of the vote: North Carolina, Wisconsin, Michigan, Pennsylvania and Arizona.

CNN announces that DeSantis has won the election…. 

What Is To Be Done?

That’s the title of an 1863 novel by Nikolai Chernyshevsky. It’s about a woman who escapes the control of her family and finds economic independence. (Lenin borrowed the title for a pamphlet about a few “burning questions” in 1902.)

It’s the phrase that came to mind in reaction to the Supreme Court Six’s effort to make America fit their reactionary politics.

Here are two aspects of the situation that make it remarkable (there are others).

One is that the six reactionary Republicans are trying to justify their bizarre rulings by referring to made-up legal theories. As right-wing judges have done for years, they cite “originalism” and “textualism”, the ideas that the Court should pay close attention to the Constitution’s precise text and the specific intentions of its authors. It just so happens that the text and the perceived intentions always support whatever justices like Alito and Thomas prefer to do. Justice Kagan pointed this out in her dissent to the EPA case:

The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

The “major questions doctrine” is a classic conservative invention. Paul Waldman explains that one:

[It] holds that agencies can’t regulate in ways that aren’t explicitly laid out in statutes if what they’re doing is too consequential — into precedent. Yet in practice, everyone knows that the major questions doctrine, being vague and versatile, will be used only to strike down agency regulations the conservatives don’t like; regulations from Republican administrations they find pleasing will be left intact.

Another right-wing invention concerns “independent” state legislatures. Mr. Waldman continues:

Lest anyone think, on the final day of its term, that the court wasn’t champing at the bit to give Republicans even more power, it announced it will be hearing the case of Moore v. Harper. That’s a challenge to the North Carolina Supreme Court’s striking down of an absurdly gerrymandered congressional map on the grounds that it violated the state constitution.

Conservatives are eager to use this case to enshrine the “independent state legislature theory,” which would effectively say that legislatures alone can set rules for how federal elections are carried out, making state constitutions, governors’ vetoes and the decisions of state courts essentially irrelevant.

Why are conservatives attracted to this idea? … The reason is simple: At this moment in history, there are multiple states where Republicans have successfully gerrymandered themselves into control of a state legislature despite the fact that the electorate of that state is closely divided.

In these states — including Wisconsin, North Carolina, Pennsylvania and Georgia — … the legislature remains firmly in Republican hands no matter what. So if the legislature alone has the power to write election rules [no matter what the state’s constitution or courts say], they can [help] Republicans win.

The Supreme Court Six’s decision-making is all about the Republican agenda. It’s all about power.

So how did we get here? That brings up another remarkable aspect of our situation. Trump toady and US senator Lindsey Graham is outraged that Senate Democrats might want to do something about this renegade Court (like changing the filibuster rule, which Republicans did in 2017 in order to easily install Supreme Court justices of their choosing). Graham says it took 50 years for Republicans to skew the Court and now Democrats want to clean up the mess in a matter of weeks.

Josh Marshall responded to Graham:

This is true. It took them 50 years. But it’s also the first time in history a party plotted to take over the Courts like this. There were 3 Democratic appointees on the Court when it decided Roe. And one of those was one of the two dissenters. The Roe Court was dominated by Eisenhower and mostly Nixon appointees. Yes, lots of elections [over 50 years]. But the first time in American history any party or movement tried to do such a thing. And when the election thing stopped working, they started stealing seats.

The best you can say about the Republican capture of the Courts is that they stole it fair and square, to paraphrase Theodore Roosevelt. When it wasn’t stealing seats, it was winning elections with the fewest votes, i.e., exploiting the minoritarian quirks of the political system.

… What Graham is complaining about here is that Democrats want to put the whole thing before the peoples representatives with an up or down vote, i.e. majority rule. Graham is saying that’s not fair. The minority gets to say you can’t vote on it….

Having captured the courts through unprecedented political means, Republicans like Graham now want to dive headlong onto the fainting couch when the other side wants to repair the damage by political means. And unlike the crafty efforts to steal seats or exploit the minoritarian quirks of the Constitution, the remedy is the most foundational of democratic remedies, passing laws by majority vote. Whether Democrats will be able to pull this off will come down to the results of the November election.

Republicans like Graham are so deep in the world of partisan scheming and theft that a majority vote looks like the ultimate travesty. The simple reality is that the corrupt Court majority is the fruit of Republican corruption and the answer is majority rule.

But what can be done? I want to blog about that next time.

Why the Court Has Gone Rogue and Ideas on How to Fix It

Five justices nominated by Republican presidents (and two nominated by Democrats) passed Roe v. Wade in 1973. Four justices nominated by Republicans (and one nominated by a Democrat) upheld Roe v. Wade with some revisions in 1992.

That didn’t happen this week. David Roberts (of the Volts newsletter) helps explain how the Supreme Court got filled up with right-wing fanatics:

If you read about the birth of the Federalist Society, there’s a kind of theme in the background that’s worth elevating. Conservatives’ problem over the years is that they would nominate judges & then be “betrayed” as judges drifted left (or just moderate). Souter, Kennedy, Blackmun etc.

Conservatives have lots of ways to explain this to themselves. Being exposed to liberals corrupts the bodily fluids! Etc. But the most most sensible & obvious explanation is that decent people, once they survey the evidence & arguments, come out in a decent/compassionate/liberal place.

Now, noticing that the smart, decent people they nominated kept coming to compassionate/moderate conclusions, they did NOT conclude, “gosh, maybe we should be more compassionate/moderate, since that’s where good-faith study of the evidence seems to lead!”

Instead, they decided they needed a cult-like organization where they could create hyper-ideological zealots, people so committed to reactionary conclusions that NO amount of exposure to evidence or simple humanity could ever change their minds: thus, Federalist Society.

Thus we have the striking situation we get today: liberals looking for judges can pull them from anywhere. But conservatives looking for judges can ONLY find them in this creepy billionaire-funded hothouse fringe cult full of ditto-brained mediocrities.

It’s really a great illustration that if you want someone truly, consistently reactionary, you need to find a particular dysfunctional personality type that can selectively ignore evidence, ignore nuance & context, ignore simple humanity & human need. You need a zealot.

That’s why the conservatives on SCOTUS are, in addition to being so horrible on the law, just kind of weird & creepy — intellectually mediocre but hyper-prickly & vain. They were forged in the Federalist Society laboratory. That does not produce normal, healthy people.

Unquote.

Jamelle Bouie of The New York Times has some ideas about fixing the Court:

The Supreme Court does not exist above the constitutional system.

It can shape the constitutional order, it can say what the Constitution means, but it cannot shield itself from the power of the other branches. The Supreme Court can be checked and the Supreme Court can be balanced.

It is tempting, in the immediate wake of the court’s ruling in Dobbs v. Jackson Women’s Health, to say that there’s nothing to be done about the reactionary majority on the court. But that’s just not true. The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court.

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

In the face of a reckless, reactionary and power-hungry court, Congress has options. The problem is politics. Despite the arrogance of the current Supreme Court — despite its almost total lack of democratic legitimacy — there is little to no appetite within the Democratic Party for a fight over the nature of the court and its place in our constitutional system. For many Democrats, President Roosevelt’s attempt to expand the size of the court is less a triumph than a cautionary tale — a testament to the limits of presidential leadership and presidential power.

But Roosevelt did eventually get a Supreme Court that allowed most of the New Deal to stand. The threat worked. The court was humbled.

It will take time to build the kind of power and consensus needed to make significant changes to the court. But even the work of amassing that power and putting that consensus together can stand as a credible threat to a Supreme Court that has acted, under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.

The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

Unquote.

One way to begin is for anybody who had trouble voting for Barack Obama, Hillary Clinton or Joe Biden in a general election to recognize that the Democratic Party, lame as it often is, is the only institution that stands between us and living in an anti-democratic, Christianity-centered, climate crisis-denying, anti-woman, anti-gay, reactionary dystopia.

We also need to exert pressure on the aged leaders of the party to face reality. This isn’t 1991 anymore.

Use what’s left of our democracy or lose it.

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