Our Undemocratic ConstitutionRoundup
tags: Supreme Court, judiciary, Amy Coney Barrett
Julie C. Suk is a professor of sociology, political science, and liberal studies at the Graduate Center of the City University of New York (CUNY) and the Florence Rogatz Visiting Professor of Law at Yale Law School. She is the author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment.
“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.
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.