We Don’t Need No Stinkin’ Constitution

Is it time to call the whole thing off?

Ryan D. Doerfler and Samuel Moyn, law professors at Harvard and Yale, respectively, make a radical argument in a New York Times op-ed that is not done justice by the headline “The Constitution Is Broken and Should Not Be Reclaimed.”

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.

It has been a long-running theme here that the US Constitution is not only fundamentally undemocratic but nearly impossible to fix. Further, Steven Taylor and I have gone further and argued the absurdity of governing a 21st Century global superpower based on a document written before the invention of the bicycle. But Doerfler and Moyn are arguing that the very notion of a constitution is problematic.

And, oddly, they do so mostly on the basis that it hinders the progressive project, not on grand principle.

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. 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 Donald Trump’s nominees. It was revealing that liberals responded by founding (in 2001) an organization called the American Constitution Society, which produced the book “Keeping Faith With the Constitution.” And when liberal law professors got together in the mid-2000s to dream of a different America, that yielded the book “The Constitution in 2020.” But since then — 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.

This seems to me an argument for the absurdity of having the federal courts as the ultimate arbiter of our governance rather than against having a higher law. But, given that somebody has to adjudicate conflicts between ordinary legislation and a constitution, that may be a difference without distinction.

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.

So, again, I agree that the Senate and Electoral College (which are variants of the same problem, given the composition of the latter is problematic primarily because it’s tied to the former) are archaic and undemocratic. But I’m a really big fan of due process and equal protection and can easily foresee a future Congress and President who lack a commitment to those principles. Isn’t it worth having safeguards against the popular will on fundamental rights?

Further, whatever one’s opinion on abortion rights, they were created by the Supreme Court in 1973 and uncreated in 2022; it’s a weird topic to hang one’s hat on. And relying on a 104-year-old case to fearmonger about child labor laws is just disingenuous.

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.

This strikes me as dangerous and illegitimate. More on that shortly.

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 antipolitics. 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.

This is far and away the strongest part of their argument. And it’s one that has appeal to genuine conservatives: the truth of the matter is that, in fundamental ways, the modern state exists because we simply ignore parts of the Constitution. And, much more concerning than the future of affirmative action, there’s a really, really good chance that the Supreme Court is about to rule that Congress’ century-old policy of delegating huge chunks of its Article I power to Executive regulatory agencies is unconstitutional. That would be a disaster of monumental proportions—and yet arguably correct.

But here’s where I get uncomfortable:

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.

Doerfler and Moyn seem to believe that a majoritarian country will always be a liberal one. There’s no guarantee of that. I prefer a system with guardrails.

The path to their desired goal is radical, indeed:

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.

All officers of the Federal government, from the President, Speaker of the House, and Chief Justice all the way down to the lowliest Army lieutenant and civil servant, take an oath to support and defend the Constitution. What Doerfler and Moyn advocate amounts to an insurrection.

To be sure, it solves the fundamental problem with reform: the current system is essentially set in stone. Eliminating the Electoral College, reforming the Senate, serious judicial reform, and the like all require Constitutional amendments that require the support of two-thirds of both Houses of Congress and must then be ratified by three-fourths of the State legislatures (i.e., 37 states).* That’s essentially impossible. Indeed, there hasn’t been a truly fundamental** amendment since the passage of the 23rd Amendment (direct election of Senators) in 1913.

Or, at least, it would solve this problem if the current system didn’t make it next to impossible. It would require passage through the House, overcoming a filibuster in the Senate (or its abolition), and the signature of the President. Good luck with that.

And, if that somehow happened, skirting the amendment process through chicanery would surely not be seen as legitimate. Then again, neither, for a large plurality, is the status quo.

They close:

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.

There are countries, notably the United Kingdom, that function just fine without a written constitution. I’d like to think our norms and values are sufficiently inculcated at this point that we would live by them absent a Supreme Law enforced by a Supreme Court. But we have quite a few data points that indicate otherwise.

_____________________

*There is also a provision for a Constitutional Convention called by three-fourths of the states but essentially everyone thinks that would be a disaster.

**I don’t consider women’s suffrage or eliminating the poll tax, or lowering the voting age from 21 to 18 structural changes but expansions of the existing system.

FILED UNDER: *FEATURED, Law and the Courts, Supreme Court, US Constitution, US Politics, , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tony W says:

    Excellent analysis. At its best a Constitution protects minorities from the tyrannical majority – two wolves and a sheep deciding what’s for dinner.

    One major problem is that the U.S. constitution protects powerful and privileged minorities rather than weak ones.

    I don’t have a solution.

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  2. gVOR08 says:

    Of late there’s been much discussion of swearing oaths to the Constitution. Driven by Trump’s prominent failure to follow his oath. But if you think about it, it’s an odd thing to do. What, actually, does it mean? We’ll defend a physical piece of paper, parchment actually, in a vault at the National Archives? We’ll defend to the death the current SCOTUS interpretations, subject to change daily? We’ll die for Wyoming’s right to as many senators as California? It strikes me as one of those things where everyone knows what it means, but it doesn’t pay to think too much about it.

    I feel like the Federalists may be technically correct in their interpretation of the Second Amendment. Seems like for the preceding century there was a tacit common sense agreement by the Court that we’ll say it’s a collective right because saying anybody can carry a gun anywhere is just crazy. I fear the same applies to the Commerce Clause. We’ve common sensibly interpreted it broadly because doing so is necessary to having a functioning national government.

    We’ve always had greedheads who can’t see beyond their own bank account. For which see Kathy’s comment in another thread this morning. Some of them got together 40 years ago and launched the most successful open conspiracy in our country’s history, the Federalist Society. Dedicated to the libertarian principle that billionaires should be free to do whatever they want. You think they screwed us over on guns and abortion? Wait til you see what they do to the Commerce Clause and the Equal Protection Clause of the 14th Amendment to destroy “the regulatory state” that unfairly insists Chuckles Koch clean up his chemical spills.

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  3. Scott says:

    My big fear and next potential crisis is this. Two states, Nebraska and Maine, allow their electoral votes to be split. What if there are other states who want to do this. Example, a politically balanced state like Michigan and Wisconsin swings Republican. Their legislature decides to split its Electoral Votes by congressional districts. Given gerrymandering, this will permanently entrench Electoral votes to one party. This hasn’t been a problem because Nebraska and Maine are so small as to not to create an issue. But it could lead to legally permanent minority rule.

    The Electoral College has so many issues it should be eliminated.

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  4. Chip Daniels says:

    Doerfler and Moyn seem to believe that a majoritarian country will always be a liberal one.

    Its easy to forget how popular illiberalism is, and how tenuous and fragile a liberal democracy is.
    The actual working examples of liberal democracy are all within the latter half of the 20th century, and even those sputter and flicker like candles in a breeze.

    Liberal democracy has a lot of prerequisites, of trust building and peace and widespread prosperity and others as well. When those are absent, the default becomes some sort of authoritarian rule.

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  5. Sleeping Dog says:

    England has gotten by w/o a constitution in large part due to the gradual stepping away from monarchy that allowed the development of governing norms, that succeeding governments have followed. Frankly the Brits seem more willing to follow historical norms than we are. Imagine if there were not a constitutional process in 2020/21 and definitions as to the order of authority for the military?

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  6. James Joyner says:

    @gVOR08:

    Of late there’s been much discussion of swearing oaths to the Constitution. Driven by Trump’s prominent failure to follow his oath. But if you think about it, it’s an odd thing to do. What, actually, does it mean?

    It’s a bit nebulous but I’ve always taken it as a pledge to the country and the rule of law, rather than to a single leader. If the President issues an unlawful command or even an immoral one, that’s not the end of it because there are other actors who get to weigh in.

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  7. Slugger says:

    Constitutionalism is a sham to allow the people in power to do what they think they can get away with. That is why everyone cares who becomes a Supreme Court Justice. Is segregation ok? Well, it was found compatible with our constitution for 150 years till public agitation made that untenable. Abortion? Constitutional until it isn’t. Corporate money in politics? Suddenly constitutional when the money goes to the right people. Does the Constitution protect against arbitrary police actions? Not if you’re a second generation Nisei. Each one of you can find your own examples.
    One can not take the Constitution seriously. It is a way to mislead you from focusing on the realities of power.

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  8. Michael Cain says:

    Just my opinion, but the United States as a single political entity will not survive any efforts to truly fix the Constitution. California and Mississippi, for example, have irreconcilable differences over what type of country it should be. The best we can hope for is a relatively peaceful partition into a few chunks. All of the likely ones are still going to be large rich countries on a global scale.

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  9. gVOR08 says:

    @Sleeping Dog:

    Imagine if there were not a constitutional process in 2020/21 and definitions as to the order of authority for the military?

    At Lawfare one Doyle Hodges has an article criticizing General Milley for taking proactive steps to defend democracy. In his view Milley violated the chain of command. Admittedly for good motives, but nonetheless a violation. And the next Chairman of the Joint Chiefs may be an authoritarian.

    My gut reaction is to disagree with Hodges, but it’s an edge case, a difficult call morally, and unlikely to come up as a legal matter. And I feel Hodges neglects the extent to which top military brass are skilled political operatives unlikely to blindly follow orders in any case.

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  10. Kathy says:

    This ties to something I’ve been thinking about lately. I admit is a pie in the sky idea.

    At root, I think the idea of a constitution, written or not, as a foundation for all law is flawed. On the one hand a constitution that’s hard to amend becomes rigid, outdated, and inevitably gets corrupted (see @gVOR08’s comment up-thread). On the other hand, one that’s easily amendable, like Mexico’s, becomes little more than a reflection of the present without much thought to future consequences.

    Now is when I should say we need to find the right balance between permanence and adaptability.

    Well, perhaps. But not by finding the one right way to draw up a constitution. I’m thinking of something else.

    Before a constitution, there needs to be a permanent, rigid, inflexible foundation the constitution and all laws must respect. Like a charter or founding document. This perforce must absolutely be heavily weighted towards liberty and legal equality, an it must be absolutely inclusive.

    The closest thing I can think of is the The Declaration of the Rights of Man and of the Citizen. This was not what I mean, though. It largely excluded women, did not address slavery, and failed in a number of other ways. It also wasn’t a binding set of principles or rules that had to be included in the constitution.

    What we need is something that delivers and guarantees equal rights for all adults, with exceptions only for those who violate the rights of others. That’s too ample and non-specific. It’s a work in progress.

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  11. john430 says:

    Steven Taylor and I have gone further and argued the absurdity of governing a 21st Century global superpower based on a document written before the invention of the bicycle.

    Gee, I didn’t know that scholars have a time calendar that is Before-bike (BB) and After bike (AB). What are we gonna do about that really old writing that says “Thou shall not kill” and other old stuff? It’s all Before bike

  12. wr says:

    For some reason this keeps reminding me of Hazel Motes’ Church of Christ Without Christ.

  13. JKB says:

    @James Joyner:It’s a bit nebulous but I’ve always taken it as a pledge to the country and the rule of law, rather than to a single leader.

    I used to like to shock fellow officers by pointing out that honoring my oath could mean that I could become an enemy of the government if the latter started operating unconstitutionally. The rub was, you don’t get your own interpretation of the Constitution, which made the creeping divergence problematic. But this suggestion is a direct break and would at once make the federal government illegitimate.

    It has seemed to me that like the previous iterations protections from the judicial branch might be needed. It should be noted, however, the earlier iterations came out of civil wars.

    The study of Anglo-American constitutional law is that of the liberties of the people. Neither a body of dry technicalities, as the demagogue is prone to consider it, nor an instrument new created in the year 1787 and now but an inconvenient impediment to the national destiny, our own Constitution registers the totality of those principles which, in eight hundred and forty years of struggle, the Saxon peoples have won back again from Norman kings, the common law from Roman conceptions of a Sovereign State; each rising wave of freedom leaving its record in some historic document, then perhaps to recede again until the next flood left a higher record still. And if to the Mother Country is due the invention of the Constitution as a bulwark of the people against the Executive, to our forefathers belongs the glory of protecting the people against the Legislative as well; and against the usurpations of any Government or law, even of their own making, on that irreducible minimum which time has shown to be necessary to the English-American people for freedom as they understand it. Give them less than this and they will fight.

    –THE CONSTITUTION AND THE PEOPLE’S LIBERTIES, F. J. STIMSON. (1907)

    Stimson writes of English-Americans, but I expect a diversity of Americans would fight to keep their liberties. One thing became apparent to those in Australia, New Zealand, Canada, the UK, during the pandemic, and that is that they do not have enforceable rights, only grants from their parliaments that can be taken on whim.

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  14. James Joyner says:

    @john430:

    Gee, I didn’t know that scholars have a time calendar that is Before-bike (BB) and After bike (AB).

    I was looking for the most absurd basic invention that post-dates the Constitution. The telegraph came before the bicycle, for example, but seems more advanced.

    What are we gonna do about that really old writing that says “Thou shall not kill” and other old stuff? It’s all Before bike

    There are indeed some ancient tenets that are still useful. There’s still a lot of value in the Constitution itself and, especially, the Bill of Rights. But, to take your example, many of the 10 Commandments are pretty silly in the 21st Century. It likely makes sense to review one’s governing philosophy from time to time to see what’s still valuable and what isn’t.

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  15. Dj says:

    @James Joyner: eyes open, silly building a system, to self govern sovereign citizens, upon a righteous foundation?

  16. gVOR08 says:

    @James Joyner: And even, “Thou shalt not kill” is subject to considerable interpretation. Abortion aside, there’s war, execution, and self defense, not to mention the now banned ancient Hebrew and Roman practice of infant exposure.

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  17. Andy says:

    There are a host of problems with this thesis, but I think the fundamental problem is that the authors misunderstand the popularity of what they want to achieve.

    The failure to implement progressive policies is not primarily due to structural impediments – the problem is that progressives represent perhaps 15-20 percent of the population. If they can’t win in intra-party squabbles inside the Democratic party, the notion that “more democracy” will result in progressive wins seems wishful thinking as best.

    The authors are quite far removed from the median American and don’t seem to realize it.

    Indeed, there hasn’t been a truly fundamental** amendment since the passage of the 23rd Amendment (direct election of Senators) in 1913.

    What about the 18th amendment?

    To be sure, it solves the fundamental problem with reform: the current system is essentially set in stone. Eliminating the Electoral College, reforming the Senate, serious judicial reform, and the like all require Constitutional amendments that require the support of two-thirds of both Houses of Congress and must then be ratified by three-fourths of the State legislatures (i.e., 37 states).

    Except there are major reforms available that don’t require clearing that high bar. Expanding the House would solve most of the problems with the EC, and would at least significantly reduce the chance of an EC-popular vote mismatch. It would improve representation and would also make gerrymandering more difficult depending on the size of the expansion.

    And if one actually desires significant Constitutional reform, then expanding the House is an obvious step toward that effort.

    I just go back to the disconnect between what people say they want vs. what people actually do or try to achieve. There’s lots of ink spilled over the “undemocratic” nature of our institutions, yet there is zero effort to do anything. Expanding the House is something that could be done that is structurally a MUCH easier lift than amending the Constitution – yet it is largely ignored as an option.

  18. Just nutha ignint cracker says:

    @Michael Cain: Pro tip regarding partitioning the nation into segments that will still, by global standards be prosperous: Make sure you live in a chunk that is going to continue to fund Social Security. The stubs that continue to fund the program will not be subsidizing the ones that decide not to. At least that’s my guess. (And there’s no “sovereign wealth fund” account to divvy up, either. 🙁 )

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  19. James Joyner says:

    @Andy: Prohibition was a radical, of short-lived, social experiment but not a significant structural change in governance.

    I do agree that radically increasing the size of the House would largely solve the Electoral College problem and make gerrymandering harder. It doesn’t change the wildly undemocratic nature of the Senate or the Supreme Court—although it does lower the likelihood of Justices being appointed by a popular vote loser. Still, even if the filibuster were eliminated, the Senate gives a minority effective veto power over legislation.

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  20. Just nutha ignint cracker says:

    @john430: Well that was incoherent beyond the norm. Give yourself a pat on the back for me. Everyone should excel and something.

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  21. Just nutha ignint cracker says:

    @Just nutha ignint cracker: And yet Dr. Joyner gave your snark a hearing followed by a calm rational explanation of why he used the example he did (which was transparently obvious even to a cracker as ignint as I am 🙁 ). This is what I’m talking about when I sometimes lament that I am not of as generous a spirit as others who come here.

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  22. Mikey says:

    @JKB:

    One thing became apparent to those in Australia, New Zealand, Canada, the UK, during the pandemic, and that is that they do not have enforceable rights, only grants from their parliaments that can be taken on whim.

    All the American women who recently had the right to bodily autonomy ripped away in a moment by six unelected judges were apparently unavailable for comment when you wrote this.

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  23. Just nutha ignint cracker says:

    @James Joyner: “It doesn’t change the wildly undemocratic nature of the Senate or the Supreme Court…”

    And it also would probably not change the larger issue that two philosophies that appear to be antithetical to each other are vying for supremacy in one nation. We had this problem before twice. Once with slave vs. free and once with the various indigenous tribes we encountered as we manifested our destiny.

    For the indigenous peoples, we created reservations, basically sectioning them off into areas that we could do without the economic advantages of (until mineral ores were found in some cases, at which point we broke our word to those people and declared “we can’t stop people from prospecting–and neither can you, we’ll see to that”).

    For the other, we papered over the problem “with malice toward none and charity for all.” The paper is peeling off. My problem with the authors’ dilute the problem solution is that no matter how many states we create, we’ll still have people living in them who axiomatically disagree with where the nation is going–no matter which direction it is, as well–and those people will continue to seethe in resentment about the state of things.

    The solutions suggested, though possibly a good start to a discussion that will not happen as a nation (are YOU–whichever side you’re on–gonna want to talk to people who hate America and want to destroy it?), strike me as just another kick of the can down the road.

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  24. James Joyner says:

    @Mikey: But that right was never in the Constitution to begin with. And, if the authors had their way, wouldn’t have been conferred by a Supreme Court, who wouldn’t have had that power. Instead, it would have required an Act of Congress—which we somehow haven’t managed to pass.

  25. James Joyner says:

    @Just nutha ignint cracker: The theoretical solution for this is Federalism: California and Mississippi can make their own laws on most issues. But that doesn’t help the minority in each state who can’t easily pick up and move.

  26. Andy says:

    @James Joyner:

    I do agree that radically increasing the size of the House would largely solve the Electoral College problem and make gerrymandering harder. It doesn’t change the wildly undemocratic nature of the Senate or the Supreme Court—although it does lower the likelihood of Justices being appointed by a popular vote loser. Still, even if the filibuster were eliminated, the Senate gives a minority effective veto power over legislation.

    The “wildly undemocratic” nature of those institutions has been the case throughout the history of our country and will continue to be the case for the foreseeable future. The necessity to politically compete at the state level has always been with us and is not going away. And indeed, if one actually aspires to do the work to change those institutions, one needs to first win in the system as it exists.

    Expanding the House is low-hanging fruit in comparison.

    I would just note the disconnect between words and actions again. I hear and read many who complain about our institutions in near-existential terms, yet there isn’t even an attempt to actually do anything to make changes, even ones that don’t require a Constitutional amendment.

  27. James Joyner says:

    @Andy: There have certainly been calls, including from front pagers here, to increase the size of the House. I grant that it hasn’t gotten much momentum it would be next to impossible to pass unless the filibuster went away.

    And, yes, the Senate and Electoral College have been baked in from the beginning, even if both are radically different then the Framers envisioned. (Neither Presidents nor Senators were intended to be elected by the people.) But, first, the disparity in the size of states is way larger than it was at the founding. Second, our impulses are simply radically more democratic now than they were 240 years ago.

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  28. Michael Cain says:

    @James Joyner:

    The theoretical solution for this is Federalism: California and Mississippi can make their own laws on most issues.

    Not snark, but how do you make Social Security or Medicare work under federalism? Combined, those are what? More than 50% of federal government spending? California is no doubt rich enough to create a public pension program if they can restrict it to Californians. If all the olds from Mississippi show up and demand pension payments, there’s a problem.

    Pretty quickly, I think, we’d be back to the point just before the Civil War, where a whole bunch of people thought of themselves as Virginians first and Americans second.

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  29. Andy says:

    @James Joyner:

    Yes, you and Steven are part of a small minority who have occasionally advocated for it, to your credit. The problem is hardly anyone else even mentions it, particularly those who are in power or have influence with those in power.

    I don’t agree with you on the filibuster – I think the biggest challenge is that the vast majority of House members will likely oppose expansion because they could lose safe seats, and their individual influence would be diminished.

  30. Mikey says:

    @James Joyner:

    Instead, it would have required an Act of Congress—which we somehow haven’t managed to pass.

    So, basically a grant from Parliament that could be taken at a whim, then?

    But my point rested on the assertion in Roe v. Wade that the right to bodily autonomy is derived from other enumerated rights. That opinion stood for 50 years and was applied to derive other rights, which are apparently now on equally tenuous footing simply because the High Court has been taken over by the nakedly religious.

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  31. Andy says:

    @Michael Cain:

    Not snark, but how do you make Social Security or Medicare work under federalism? Combined, those are what? More than 50% of federal government spending?

    The same as it works now?

    I think there’s a fundamental difference between the federal government providing largely universal funds or services that provide benefits for the whole population vs. other things the federal government might do which have disparate impacts or don’t affect the whole country.

  32. Just nutha ignint cracker says:

    @James Joyner: Which was kind of my point, except I didn’t express it as well as I should have. And the fact that Mississippi will only be able to create a hostile environment for minorities and not burn them out, murder them, return to chattel slavery, or whatever because national laws will prohibit it will stay a sticking point for some. (Hopefully not many, but you never know.)

  33. James Joyner says:

    @Mikey: I’m in the very tiny minority that thinks that both Roe and Dobbs, which overturned Roe, were outrageous acts of judicial activism.

    @Michael Cain: Were it up to me, I’d socialize the safety net but mostly leave the social issues to the states. But I’m not sure how possible it is in a society as mobile as ours.

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  34. Mister Bluster says:

    @john430:..“Thou shall not kill”…

    Unless a lie is concocted that will justify the murder of innocent citizens whose speech is unacceptable.

    john430 says:
    Friday, 19 August 2022 at 12:01

    Too many people who call themselves Democrats now seek to implement a one-party system where all the members MUST call each other “comrade”. So to that end, we stock our weapons just in case 1776 repeats itself.

    6
  35. Michael Cain says:

    @Andy:
    @James Joyner:
    Yes, I was thinking of federalism in terms of the states making more fundamental decisions. Dr. Joyner suggests making state changes to the safety net off limits. What about environmental protection? What about voting systems that in practice discriminate against the poor, or by race? I’m old enough to remember when there were states where a married woman couldn’t have a checking account in just her name, but the husband could. Should we call it federalism if the states can only, at best, tweak around the edges of policy?

  36. Just nutha ignint cracker says:

    @Michael Cain: I think that’s why Dr. Joyner suggests Federalism as a “theoretical solution.” I would go on to note that in the sort of post-modern constructible reality that we have, even defining “Federalism” could turn problematic. Witness the number of times that people will stake out fairly strong states’ rights positions but call them Federalist.

  37. Andy says:

    @Michael Cain:

    Dr. Joyner suggests making state changes to the safety net off limits.

    I don’t think you have to make it off limits- just provide the benefits and if states want to add additional benefits with their own money, then let them.

    What about environmental protection? What about voting systems that in practice discriminate against the poor, or by race? I’m old enough to remember when there were states where a married woman couldn’t have a checking account in just her name, but the husband could. Should we call it federalism if the states can only, at best, tweak around the edges of policy?

    Where to draw the line is definitely debatable. The federal government deciding issues for all states comes with tradeoffs, and those must be assessed.

    You and I are both in Colorado. I would really rather not have the federal government crackdown on our marijuana industry. Pot is an area where federalism is slowly leading to nationwide change. Our state, California, and others are dragging the feds kicking and screaming away from the stupid drug war.

    And I like our voting system very much and am skeptical that Congress could produce something that works better for our state. Other states and localities are experimenting with ranked-choice voting, open primaries, top 2 systems, and other ideas and tweaks that could lead to improvements. Such experiments wouldn’t happen if the feds mandated a common set of rules. And once those rules are set, any future changes will be a nationwide experiment.

    Federalism is built into our dual sovereignty system. There’s only so much more one can torture the commerce clause without having to pass an amendment to increase federal power. Plus the federal government already has significant power and influence thanks to money and its ability to get around federalism in practice. The easiest thing to do if one wants more de facto federal power is more of that.

  38. Tim says:

    @Mikey:
    The court took a look at Roe v Wade and decided ( Appropriately) that it was based on a flawed Legal premise.
    The court then placed the decision for such law back in the Hands of The States.
    The truth that is inconvenient for you is…If it’s not expressly listed as the purview of the Federal government; it is remanded to the States.
    Hence, it may not be a popular ruling, but it is a correct ruling.

  39. Jay L Gischer says:

    Ok, I’m gonna make the case that Roe and Casey were in fact well-decided.

    I mean, you can cherry pick particular instances and dislike them, but at the core, what the Griswold decision rested on is the idea that the government cannot prohibit you from doing something unless it has a good reason – a “rational basis” at the very least. This idea was not invented, it was a core idea of all the 14th Amendment decision making that had happened in the prior 100 years, as the courts work out the details of how to apply “equal protection under the law” and reconcile it with “we have the right to stop bakers from making bread with poisonous additives”.

    The government has an obvious reason to stop bakers from adding poisonous or harmful additives. No such “rational basis” for restricting sale of contraceptives was, or is now, in evidence. Nor is there any such “rational basis” for restricting first-term abortion. There is only a belief that a fetus has a soul which deserves protection. I’m not denigrating such beliefs, I’m merely marking them as beliefs that are by no means universal.

    But step back from abortion, and I think you can see how this is an extremely valuable protection – governments have to have a good reason, a “rational basis” to pass laws restricting activity. That’s good, right?

  40. Cheezy says:

    The thing is, the costitution is a contract between americans that details what america is supposed to be. There are alot of us that don’t want america to be “something else”. We want america as intended. If people want something other than that, go somewhere else, and create it. Don’t try to change the deal after the handshake. Also, lets be clear about something fundamentally important. We are a republic. We are not a democracy.

  41. D8532110 says:

    Cheezy,

    The Constitution is surely not “a contract between americans”, nor was it a contract back in 1789 when the 9th state’s convention declared its “Ratification”. You would be on less mushy ground if the C were written and assented to in the manner of the agreement of a general partnership. Alas, there was neither a handshake nor a signature page for all of the would be partners. If you like, I will offer a compromise by stating that the C is only a partnership agreement among the guys who signed it, but partnerships dissolve with the death of any one of their members.

    You are correct that the USA was not supposed to be a democracy but a republic, but we have seen during the past three decades or so that she is more like the former than the latter thanks to tweaks made since the Constitutionalists caved in to demands for a bill of rights. She’s also not a federation thanks to subversive, antifederal changes such as the 17th am., which undermined state autonomy and nudged the USA toward unitary mobocracy, an ideal much beloved by sophists and scoundrels such as Doerfler, Moyn, and Joyner.

    Now, since you are hung up on the populism of the Constitution, it’s worth comparing the preamble to the relevant facts of history. I’ve already made it clear that the C is nothing much like a contract or partnership, but there’s more to unpack there. Supposedly,

    We the People [as they were in the late 1780’s] of the United States…do ordain and establish this Constitution…

    Well, ordaining and establishing are acts of particular individuals, not of some abstraction or quasimystical entity. “the People” is the name of a set, but only the elements of this set are capable of action. So the preamble insists in its own oily way that absolutely everyone was involved. Is that how it really happened? Women are people, but did any of them participate in the relavant way of men who enjoyed the franchise? Children and vagabonds, too, are people. Did any of these “ordain and establish this Constitution”? And what about the many opponents who resisted the new imperial abomination?

    Fewer than 1/2 of “the People” ordained or established the C, so the preamble is a blatant lie. This is significant, for no batch of scribbling can be “the supreme Law” of anything if it’s based on a lie, esp. one which implies—absurdly—that everyone has authority to rule, to establish a powerful state, to declare laws, and to impose their rule, their state, and their alleged laws. If you want a defensible written constitution, therefore, a good first step would be to write a truthful preamble for it, or at least a plausible one, e.g.

    “We the qualified, lawful Adults of…”

    Good luck finding more than a few hundred people in this empire of darkness who match this description. Should you find them, however, another trap awaits you when it comes time to ratify and establish your new constitution.

    You will see that Article VII of “this Constitution” pretends to state the law on “Ratification” and “Establishment” before its own establishment. The clause there dispenses entirely with the hurdle of ratification and merely assumes its own prior establishment without bothering to explain what its source of law might be. In short, A7 pretends to be part of “the supreme Law of the Land” before it’s any law at all. I trust that you can see that a source of law outside the C is needed. Yet none has ever been identified, and the precedent of the states’ cons. is fraught with two significant problems: one is already identified here, and another is the lack of relevant similiarity of the states’ cons. to the largely pseudofederal C of 1787.

    Since these problems (presupposition and absent source of law) have never been surmounted, we have another reason to believe that our precious, holy scripture is fake law and has been all along. This is good news for the many people all over the world who have been harrassed and terrorized, and who continue to be harassed and terrorized, by “our democracy” on the pretext of liberty, justice, domestic tranquility, and other self-serving excuses.