They would have been clear-eyed about the role of the Court and the dangers of too much fidelity to their original designs.
On Monday, the Supreme Court will begin a new term. The justices are slated to consider a few extremely consequential issues, including in cases concerning abortion and guns. But if the opinions issued at the end of the most recent sitting taught us anything—particularly the decision in Brnovich v. Democratic National Committee, which sapped Section 2 of the Voting Rights Act of its potency—it is this: Americans can no longer rely on the federal judiciary to safeguard their fundamental right to vote. And given the Court’s open hostility toward measures aimed at preserving U.S. democracy, legislation may be futile too. What’s left? Advocates charting a path forward should think back to the Framers. They would resort to extraordinary measures. They would consider amending the Constitution.
In general, I am no proponent of speculating what long-dead politicians would do if they were here now. There’s too much room for error, and no way of definitively proving any particular hypothesis. However, ample historical evidence exists to support the assertion that those who drafted and ratified our national charter considered it essential that the American people have the final say on its meaning. If the Court is getting it wrong, we have a civic duty to get it right, by pushing our elected lawmakers to update the Constitution in a way that promotes democracy and reflects our current values.
As I, along with my co-author, write in our new book, The People’s Constitution, the Framers encountered an obstinate or wayward Court repeatedly and, in the most extreme cases, they opted to amend the Constitution to enshrine enduring principles and vindicate the popular will. Perhaps the best evidence comes from the 1790s, when many of the Framers were still alive and governing. In a case known as Chisholm v. Georgia, the justices heard the plea of an executor of an estate seeking repayment for goods supplied to the state in support of the revolution. Georgia declined to respond to the suit, arguing that the common law doctrine of sovereign immunity protected it from citizen suits. The Court ultimately held that Article III’s language—that “the Judicial Power shall extend to all Cases … between a State and Citizens of another State”—meant what it says: that federal courts have jurisdiction to hear Americans’ claims for redress against states. In a prescient 1793 opinion, Justice William Cushing advised, “If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment.”
The Framers took that advice to heart. Within two years of the Court’s decision, Congress had proposed and the states had ratified the Eleventh Amendment, overturning the ruling and curtailing federal-court jurisdiction, thereby ridding the new national charter of what they deemed to be one of its early kinks.
Later amendments dealt with much more severe problems. The Thirteenth and Fourteenth Amendments, the capstones of the abolitionist movement, were enacted following the Civil War to remedy the Framers’ gravest offenses: their contemptible embrace of slavery and disdain for the idea of equal citizenship. Notably, the Constitution did not use the word slavery until the Thirteenth Amendment. Nor, until the Fourteenth Amendment, did it set out the requirements or rights of American citizenship.
The architects of these most important amendments drafted them in response to the odious Dred Scott decision, in which the Court held not only that Black people could not be citizens, but that they were “beings of an inferior order,” possessed “no rights which the white man was bound to respect,” and could “justly and lawfully be reduced to slavery for his benefit.” In theory, the amendments eradicated the institution of slavery and conferred upon 4 million Black men and women the rights that the Declaration of Independence recognized as innate and indispensable. In reality, it would take another century for those promises to start to take hold. Yet, in enacting the pair of amendments, the American people issued a rebuke to the members of our highest tribunal, and seared the principles of liberty, equality, citizenship, and related rights into the national charter for later generations to build on.
American citizens continued to uphold this tradition into the next century. During the Progressive era, the Sixteenth Amendment displaced the Court’s decision in Pollock v. Farmers’ Loan & Trust Co., thereby allowing Congress to enact federal-income-tax legislation necessary to sustain a modern global power. The Twenty-Fourth Amendment, ratified at the apex of the civil-rights era, outlawed the imposition of poll taxes in federal elections, partially reversing the Court’s ruling in Breedlove v. Suttles. And the Twenty-Sixth Amendment, which establishes a national voting age of 18, was adopted and ratified in just over three months to reverse Oregon v. Mitchell, a Supreme Court ruling that invalidated part of the amended and reauthorized Voting Rights Act. Remedying misguided Supreme Court decisions is a leading reason for amending the Constitution, and, as the Thirteenth and Sixteenth Amendments make clear, doing so can lead to an entire new era of constitutional change.
But, although there have been intense, compressed periods of constitutional change, excessive restraint has more commonly prevailed. During these “normal” periods, the charter has not been subjected to textual revision. Some believe that we should refrain from tampering with the Framers’ handiwork. Others suggest that amending the Constitution is impossible or think it wiser to spend political capital and resources on more attainable goals. None of these responses is new. Throughout history, advocates of an unworkable status quo employed the language of constitutional idolatry and pessimism to oppose sorely needed change.
James Madison, the father of the Constitution, envisioned that the amending clause would balance between the two possible poles. “It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” He believed, in other words, that amending the Constitution should require work. We should neither take up the amendment pen lightly nor, by the same token, inhibit ourselves when time and experience reveal defects in our national charter that render it incompetent. The examples above are indicative of the Framers’ expectations: an engaged polity pressing for reasoned and deliberative constitutional change informed by practical experience.
What does this mean for today, particularly in light of the Brnovich decision, and the decision in Shelby County v. Holder that eviscerated Section 5 of the Voting Rights Act less than a decade ago? Given the judiciary’s failure to enforce federal election statutes, and the limitations it has imposed on Congress and individual voters seeking to protect the franchise, mere legislative changes may be a meager substitute for a constitutional amendment explicitly granting the right to vote—a move that an increasing number of advocates are championing. Despite the enactment of more than half a dozen amendments that have expanded and diversified the American electorate, our Constitution currently lacks a universal-suffrage guarantee. An affirmative right to vote for all, instead of itinerant and aspirational nondiscrimination principles, can help to ensure that the franchise will be open to every U.S. citizen.
An alternative approach might address the power of the Court itself. On this, too, there has been no shortage of discussion. Indeed, as far back as the ratification debates, the Anti-Federalist Brutus augured the advent of judicial supremacy. The Constitution could make the justices “independent of the people, of the legislature, and of every power under heaven,” he wrote. “Men placed in this situation will generally soon feel themselves independent of heaven itself.”
Today’s commentary aimed at reining in the excessive judicial intervention and erroneous decision making focuses on a range of other reasons why Court reform is due: the marked increase in the number of federal lawsuits filed; the record-low number of cases on the Court’s docket; the lack of diversity on the bench, particularly given that 108 of the 115 justices have been white men; the heated judicial-confirmation battles and novel constitutional hardball tactics—such as the Senate Republicans’ refusal to hold hearings for a Democratic nominee to a vacant Supreme Court seat eight months before a presidential election, while ramming through a Republican nominee just eight days prior to the following election.
Justice Stephen Breyer has been a vocal critic of proposals to restore legitimacy to the high court, including amending the Constitution to impose judicial term limits. President Joe Biden, making good on a campaign promise, has impaneled a commission to study the issue, though many believe the group will not endorse any significant reforms. And although justices have weighed in on the need for constitutional change in the past, and presidential commissions have laid the ground for constitutional reform, the fact of the matter is that when it comes to amending our national charter, neither the president nor the members of the nation’s highest court possess a formal role. Article V—the section of the Constitution that lays out the process for adding amendments—leaves the levers of change with federal and state lawmakers, so that the representatives of the people, who are the ultimate sovereign, lead the charge on their behalf.
In a famous witticism, Justice Robert Jackson quipped, “We are not final because we are infallible, but we are infallible only because we are final.” On several occasions, the people have proved this statement wrong, amending the Constitution to correct a Court that has stumbled and fallen astray. Given our current, hyper-conservative Court’s assault on democracy and other fundamental rights, we should be the next generation of Americans to do the same.
