The Amendment Process is the Constitution's Biggest FlawRoundup
tags: Constitution, Constitutional Amendments, judiciary
Jedediah Britton-Purdy is a professor at Duke Law School. His books include After Nature and This Land Is Our Land, and, most recently, Two Cheers for Politics: Why Democracy Is Flawed, Frightening—and Our Best Hope.
The recent set of watershed Supreme Court opinions pulsates with the language of democratic accountability. Dobbs v. Jackson, overruling Roe v. Wade, makes its refrain the promise to “return” the abortion question “to the people and their elected representatives.” Concurring in West Virginia v. EPA, which restricts regulators’ ability to decarbonize the electricity grid, Justice Neil Gorsuch explained that the point of the decision was to keep power in the hands of “the people’s representatives” rather than “a ruling class of largely unaccountable ‘ministers.’” In New York State Rifle and Pistol Association v. Bruen, which struck down New York State’s 117-year-old limitation on carrying weapons, Justice Clarence Thomas presented the Court’s severe, originalist approach to the Second Amendment as a vindication of a judgment “by the people” against wishy-washy federal judges who had let the restriction stand. Indeed, while these opinions have little in common besides their conservative outcomes—Dobbs eliminated a personal right, Bruen expanded a right, and West Virginia curtailed agency interpretations of statutes such as the Clean Air Act—they all claim to protect the rightful power of “the people.”
Liberal critics, in turn, have appealed to democracy in attacking the Court as “radical” and “illegitimate.” Majorities tend to support abortion rights, climate action, and gun control, they point out, so whatever mythic “people” the justices have in mind, they are going against those people as they actually exist today. Calls to add justices to the Court, deny it jurisdiction over certain cases, or even impeach some conservative justices all come in the name of greater democratic control. Some progressives hope to get back to a more democratic Constitution, whether it is in the spirit of the reformist Warren Court of the 1950s and ’60s (the Court that gave us Brown v. Board of Education and the one-person-one-vote principle); the New Deal vision of a “second bill of rights,” including rights to good work and economic security; or even an “abolition constitution” rooted in radical traditions of freedom and equality.
But the Constitution is too fundamentally antidemocratic a document to serve democratic purposes reliably. If we want to make it genuinely and lastingly democratic, we will first have to consider changing it in the most basic way: by amending Article V, which governs amendments and so serves as the gatekeeper for living generations to say what they—we—believe American fundamental law should be. This would be a way of empowering ourselves to become founders, over and over, and not just inheritors.
The feeling that the Court is dangerously abusing its power is a new experience for many of today’s liberals (not so for conservatives, who denounced the Court for decades before finally taking it over), but it is just the latest episode of a long-standing dynamic that we might call the Iron Law of Judicial Oligarchy. Because the Constitution establishes fundamental law and is itself hard to amend, judicial interpretation is always a key lever of power in American politics. Because power attracts agendas, various constituencies are always crowding around the Court. Before the Civil War, the justices upheld the prerogatives of slaveholders and the interests of the white oligarchies in the slave states, forming a key part of Southern Democrats’ grip on national power. That’s why, in his first inaugural address, Abraham Lincoln warned that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.” From the 1880s through the 1930s, the Court protected capitalist interests from populists, unions, and other radicals, striking down labor regulations, an income tax, and other forward-thinking policies. Progressives rallied against it. In 1912, Teddy Roosevelt promised to “put the fear of God into judges” who had struck down labor legislation. In 1924, the great reformist senator Robert La Follette of Wisconsin proposed a constitutional amendment authorizing Congress to override Supreme Court decisions that invalidated federal laws—a proposal whose insurrectionary spirit future Justice Felix Frankfurter praised in The New Republic, lamenting of the pro-business jurisprudence of his time, “we have never had a more irresponsible Supreme Court.”