When the Supreme Court is Repulsed by Equality and Begins to Rewrite the Constitution

 

When a short paragraph is verbally passed quietly, person-to-person in a circle of test subjects, we all know that what went in originally is seriously different at the end of the group. Our Constitution was created in an era of distances that could take days to traverse, educational standards (even simple literacy) were uniformly poor, 95% of our productivity was agricultural generated mostly by muscle, horsepower and an occasional water wheel, the only available personal firearms were awkward muskets and flintlocks, and populous states like New York, Massachusetts and Virginia were dealing with sparely populated states like Vermont and Georgia. There is no question that our Founding Fathers really did not know what they were doing, but found that the Articles of Confederation did not work and knew this notion of democracy was worth pursuing. It was a noble experiment… but it was an experiment.

Even after they grappled with stuff like the “elections” and what offices would be filled, the branches of government and their respective responsibilities, protecting inventions and artistic creations and defining what citizenship and voting meant, etc., it was pretty clear that this constitution thang was a negotiated document that would need to change over time. Almost immediately, they recognized the Constitution’s major flaws and set about adding ten immediate amendments that they … oops… missed the first time around. The Bill of Rights. And once the Supreme Court decided that it alone was the arbiter of constitutional interpretation, thereafter with a most checkered past, it has had centuries to pass its interpretations from one panel to the next, much like that circle of folks passing that short paragraph from mouth to ear noted above… with much the same result.

Time passed, as waves of sentiment locked popular opinions that elected the presidents who would nominate federal judges (confirmed by the US Senate) who seeped their very personal biases into what were supposed to be judgments based on the Constitution and other laws and legal practices. The National Archives describes the amendment process: “The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution…

“The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor…. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register… A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).”

Aside from being the oldest constitution on earth, our constitution is also the most difficult to amend, especially in today’s severely polarized America. The 27th amendment – requiring an intervening election before Congress can give itself a raise – was ratified in 1992. It was the last amendment to our Constitution, and it took over two centuries from when it was first proposed to the point where it was ratified. Although an entirely new US Constitution is sorely needed – we live in an entirely different world today – our political polarization all but makes that impossible.

There was one assumption our Forefathers made that often proved false. They assumed a leadership, particularly the presidency, where men (sorry, women, but this was centuries ago) of good moral character that would act in the best interests of the nation… and not in their own self-interest. That was not only a huge miscalculation but one of the strongest reasons our current Supreme Court, unbounded by any ethical considerations, includes members who slorp at the trough of luxury provided by biased supplicants and others… quite prepared to undo centuries of precedents (even their own) anchored in personal bias, religious doctrine, their ability to remake society into their personal vision… not anchored in a plain and reasonable reading of the Constitution. Even to the point where we now have a Supreme Court ruling that a US president, if he/she can couch even otherwise criminal actions as part of any colorable official capacity, is now above the law.

Indeed, the introduction of judicial research into “historical” parallels – the notion of contextual “originalism” – delving into the periods in which the constitutional provisions were enacted, requires Justices to reach far beyond the law into the world of highly subjective historical research and opinion. The Father of History, Herodotus (a 5th century BCE Greek “author”), is also remembered as the “Father of Lies” for his freewheeling depictions of purported historical events. Still today, historical writings are laced with embellishments, opinions and inconsistencies.

But judicial “originalism,” which has recently crept into the analytical set required by very conservative Supreme Court justices, literally allows these jurists to look through a litany of historical interpretations until they find something that supports their position. Like the first interpretation in two centuries of the Second Amendment that held gun ownership was a fundamental and ubiquitous right (Antonin Scalia writing the majority opinion in Heller vs DC in 2008), which miscited British history and precedent in support of that result… which was lambasted by British historians and jurists as inaccurate. Now conversative Supreme Court justices rely on originalism all the time. Muskets and flintlocks define modern gun laws as a result.

In the coming weeks and from time to time, I will look at a number of constitutional provisions, reflecting a dated and obsolete document that needs a ground up do-over, an opinion shared by UC Berkeley Law Dean and author of “No Democracy Lasts Forever: How the Constitution Threatens the United States,” Erwin Chemerinsky, in the August 25th Los Angeles Times: “No matter the outcome of the November elections, it is urgent that there be a widespread recognition that American democracy is in danger and that reforms are essential. No form of government lasts forever, and it would be foolhardy to believe that the United States cannot fall prey to the forces that have ended democracies in many other countries.

“Although the causes are complex, many of today’s problems can be traced back to choices made in drafting the Constitution, choices that are increasingly haunting us. After 200 years, it is time to begin thinking of drafting a new Constitution to create a more effective, more democratic government.

“Signs abound that American democracy is in serious trouble. Confidence in the institutions of American government is at an all-time low. The Pew Research Center has been tracking public trust in government since 1958. It has gone from a high-water mark of 77% in 1964 to our contemporary 20%. A poll in September 2023 indicated that only 4% of U.S. adults said the American political system worked ‘extremely or very well.’ A recent Gallup poll had only 16% of Americans expressing approval for how Congress is performing its job… At the same time, the country is more deeply polarized than it has been since Reconstruction.” It’s that obvious!

I’m Peter Dekom, and perhaps the butterfly effect of multiple credible legal writers challenging the nation to create a modern workable new constitution might ultimately achieve that reality… or perhaps the Republic just ends.