PUBLISHED:August 29, 2022

Purdy writes on the need for a new constitutional politics that facilitates democratic self-rule

Professor Jedediah Britton-Purdy Professor Jedediah Britton-Purdy

Note: This essay was originally published in The Atlantic on Aug. 28, 2022 and can be accessed online here.

We Can Be Framers Too

The Constitution doesn’t have to be something we merely inherit; it could be something we can change ourselves—starting with rewriting the too-stringent rules for making such changes.

By Jedediah Britton-Purdy

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 Courtdeny 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.”

What has been unusual in the past 70 years—that is, all of living memory—is that the Court has been mostly seen as, on balance, a liberal institution, partly on the strength of now long-past desegregation and voting-rights cases, partly because of high-profile LGBTQ-rights cases in more recent decades. That progressive reputation has been largely misplaced for a while. The Court has been expanding protection for big money in politics since 1976, with dramatic developments since Citizens United in 2010. It cut the legs from under the Affordable Care Act’s Medicaid expansion in 2012 and from Voting Rights Act enforcement in 2013. It announced a personal right to bear arms outside militia service in 2008. But the term that ended in June 2022 sounded a trumpet blast that no one could ignore. The Court is now seen for what it is: a node of conservative power in American government that will persist for years, regardless of elections and popular opinion.

The flip side of the Iron Law of Judicial Oligarchy is a recurrent populist counterblast to the Court’s power, which denies the Court’s legitimacy in the name of democracy. Who are these old, politically connected lawyers to tell us what our fundamental law is? Who do they think they are (as Justice John Roberts asked in dissent in Obergefell v. Hodges, the 2015 case establishing a right to same-sex marriage)? Progressives asked the same question when the Court was striking down labor laws a century ago. Today’s liberals belong to a party, and often to movements, in which elite lawyers have long been overrepresented, and going to court has tended to be the first response to any new political conflict. They are rediscovering that the Court is an oligarchic institution and trying to remember how to be its populist critics. This is a change in worldview, even in identity, for people who have spent their lives regarding the Court as the bulwark of constitutional legitimacy, even against decades of growing counterexamples.

The Constitution produces judicial oligarchy (and inspires populist backlash) through several of its features: federal judges’ life tenure, their nomination by the president (twice in this century elected by someone who won the Electoral College but lost the national popular vote—something that would have happened again in 2020 with a switch of fewer than 50,000 votes), and their confirmation by the Senate (whose Republican majority during Donald Trump’s presidency represented significantly less than half of the country’s population).

But the root of judicial oligarchy is that the Constitution is almost impossible to change. Article V requires that amendments be ratified by three-quarters of the states, either through the state legislatures or in special conventions. (The convention route has happened only once, when the Twenty-First Amendment repealed Prohibition in 1933.) The upshot is that it takes only 13 states to block a proposed amendment. And to send an amendment to the states in the first place, the proposed language must be approved by a two-thirds vote of both houses of Congress.

There is an alternative route, in which two-thirds of state legislatures call on Congress to establish a special convention, which then proposes language to the states; this has never happened. With these hurdles in place, it’s no wonder that no meaningful amendment has been ratified in 50 years, nor that the fundamental changes in constitutional law for the past century—upholding the New Deal, pressing desegregation and voting rights, embracing and then rejecting abortion rights, protecting money in politics, establishing a personal right to bear arms—have all come through judicial interpretation of the Constitution, not democratic decisions to update the Constitution itself.

It may be hard to see the judicial monopoly on constitutional change (and, by the same token, on constitutional stasis) as the problem with the Constitution, because we are so accustomed to it. How else could a constitution work? But there is an answer right on the face of our Constitution, which opens with the words “We the People.” That “we” is the subject of the first sentence of the Constitution, and it goes on to “ordain and establish” everything that follows. On its own terms, it is law because “we” made it law.

But that “we” isn’t us. When that language was ratified in 1789, its “we” was all male, nearly all white, and mostly restricted to property holders. Every one of its members lived in an 18th-century agrarian republic and died a very long time ago. Even the Fourteenth Amendment, the basis of many modern constitutional rights, was ratified in 1868 by male citizens of a patriarchal country that had just abolished formal slavery. Almost all of those men have been dead for a century or more.

As striking as the demographic differences are between who counted as “the people” in 1789 or 1868 versus today, the most fundamental problem is the tyranny of the past over the present. If today’s Americans could freely decide that the Second Amendment’s “right of the People to keep and bear arms” should remain our fundamental law today, it wouldn’t really matter that the language was, in a sense, proposed to us by members of a very different, long-ago society. The real scandal of the Constitution is that it gives the living people no real choice in the matter. Past generations dictate our fundamental law.

Indeed, even if those past political processes had been much more inclusive, they would still belong to the past.  If we take seriously the democratic principle of ratification that the phrase “We the People” suggests, then nothing can make another generation’s fundamental law count as ours except our consenting to it. In American constitutional law, silence—the fact that we have not amended the Constitution—counts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.

Plenty of efforts have been made to square this circle, but none has really worked. The justices of the Supreme Court interpret an old and rather brief Constitution, and they do so under constant pressure from talented lawyers to find new meanings in phrases such as equal protection of the laws, words like liberty, or the general pattern of authority that the Constitution creates among the states and the national government. No wonder so many of the justices’ opinions seem to come down to what W. E. B. Du Bois in Black Reconstruction impatiently called “incantation and abracadabra.”

At the moment, the most notorious abracadabra is originalism. The method of the Court’s recent gun-rights decisions, and deeply influential in its rejection of Roe (although Justice Samuel Alito presented his analysis in Dobbs as more traditionalist than strictly originalist), it purports to anchor constitutional interpretation to the public meaning the words had when they were ratified. Originalism strikes its critics as ancestor worship—worse, the selective worship of some Americans’ white, property-holding, male ancestors. But as the late Justice Antonin Scalia often explained, the basic theory of originalism is that the Constitution changes only when the people mobilize to change it. The alternative, he warned, was that it would change whenever five justices changed their minds, which would put ultimate political power in the hands of the Court. Originalism makes what sense it does because it is a way of defining the justices’ power as compatible with democracy—at least notionally.

Due to its premise that legitimate constitutional change comes only from the people, originalism would be a pretty solid way to interpret a constitution that living majorities had meaningful power to change. Were the amendment process a lower hurdle, it really would make sense to say that if we haven’t made new fundamental law, that must show that we are content with the old law. But our Constitution is not that kind.

Because constitutional text is effectively closed to change, anti-originalist justices have felt justified in finding new constitutional meanings in the old language. After all, the world changes; who else but judges will change the Constitution accordingly? The passage of time brings new insights, former Justice Anthony Kennedy replied to Justice Scalia in Obergefell, and only expansive interpretation can bring those insights into the old text. Freedom and equality have very different meanings in our lives today than in 1868, when the Fourteenth Amendment was adopted. Why should the Constitution be stuck when the rest of us are moving on, using old words in new ways?

Each side can clearly see Du Bois’s abracadabra in the other. Each is partly right about the other’s democracy problem. Living constitutionalism is sincerely motivated, but its originalist critics are not wrong: It does amount to saying that, on key issues, “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” as Justice Scalia pungently put it. By the same token, with a frozen constitutional text, originalism can handcuff a diverse and changing country to old and unwelcome principles—a colonial-era right to bear arms, or, as Justice Thomas has proposed, a constitutional ban on most federal environmental law (ecology having been far from the Founders’ minds).

But even saying that originalism keeps us trapped in the past takes it too much on its own terms: What it does, rather, is carry us into the future in the way preferred by a handful of right-wing jurists. Its appeals to a certain kind of constitutional democracy do not make it any less a version of judicial oligarchy. Originalism is not conservative in the sense of preserving legal principle. Rather, it is radical: a recipe for uprooting key features of modern law, including (at least) labor and safety regulations as well as environmental law. And originalists have no special mind-meld with the founding generation or with constitutional principle. Like anyone else playing the judicial-review game, they decide questions of fundamental law through the votes of nine politically connected judges.

The real irony in originalism’s march to the heights of judicial power is that, under the banner of loyalty to law, history, and the prerogatives of democracy, originalists (and the rest of the conservative legal movement) pursued a strategy that showed just the opposite conviction: In an oligarchy, power belongs to those who choose and train the oligarchs. Over more than four decades, the Federalist Society has recruited, trained, and placed a right-wing legal elite in the country’s top institutions. It has done so because conservatives in the 1970s—the last decade when it was really possible to regard courts as vehicles of broad progressive reform—saw the legal profession as suffused with broadly liberal politics and jurisprudence. Legal liberals regarded their hegemony as the natural and proper state of the law. They recruited, trained, and placed their own legal elite, and thus provided the model for right-wing institution-building. The difference was that many liberals had grown complacent enough to forget that they were engaged in an ideological battle for control of oligarchic institutions. The conservative insurrectionaries did not forget.

Both originalism and living constitutionalism are versions of judicial oligarchy, fought out in battles for control of the courts. They cannot be anything else in a country with a frozen Constitution and partisan courts. The judicial opinions that the public reads are a kind of bookkeeping, documenting the balance of power. The Dobbs opinion had been written for years, in originalist dissents from abortion cases, in Federalist Society talks and journals. Justice Alito’s 79 pages, plus appendices, is how the Supreme Court writes “6–3.” That is six votes out of some 330 million Americans. But then again, Obergefell had only five.

So do we need to line up with our preferred oligarchs and fight like hell for control of judicial seats? Quite understandably, this has been the progressive attitude. It has the virtue of pragmatism. But it has the vice of accepting that we live under a basically undemocratic Constitution.

A more directly democratic approach would bring that pregnant phrase “We the People” back to life in the 21st century. This would mean amending Article V so that living generations could amend the Constitution and make a fundamental law that is actually our law.

The concrete results could be dramatic. Based on public-opinion polling, they might well include reinstating a baseline national abortion right, allowing for gun regulation that promotes public safety, and reauthorizing Congress and state legislatures to limit the campaign spending of corporations and wealthy individuals. Constitutional amendment could reform or eliminate the Electoral College, empowering national majorities to choose the president. It would be an opportunity to take on gerrymandering for House seats and the Senate’s two-seat-per-state structure—both major vehicles for minority rule.

There would be a more basic benefit too. A constitution makes democratic sense as a fundamental law, a limit on what legislatures and executives and even majorities of citizens can do with government power, if and only if those who live with it can consent to it when they wish, and change it otherwise. This was very clear to some of our Constitution’s Framers, such as James Wilson (also an early Supreme Court justice), who insisted that “the people” would be able to change the Constitution “whenever and however they please. This is a right of which no positive institution can ever deprive them.” Although James Madison wrote that the Constitution he did so much to design was marked by “the total of exclusion of the people in their collective capacity” from any share in government—that is, our system boxes out direct democracy—he also held that the power “to alter or abolish its established government” always resided with the majority. (He justified the Constitution’s arcane amendment process by denying that the United States was a nation; he considered it a hybrid of a nation and a confederation—a position that far fewer citizens would find plausible today than in 1787.) To boil it down: Constitutional commitments have authority, as the Constitution’s first words indicate, because they are the people’s commitments.

It’s fine and good for judges to enforce these commitments and inevitably disagree about their meaning, as long as the people can give the final word. Originalism’s basic problem is that living generations have no real way of consenting to the old Constitution. Living constitutionalism’s basic problem is that living generations have no decisive way of stating what fundamental law they would prefer. Enhancing the democratic power to change or reaffirm the Constitution would solve both problems—and dissolve the need for both originalism and living constitutionalism as we know them.

How should we go about changing the Constitution, if we could? There is a lot of value in giving constitutional change a separate track from ordinary politics, so it does not become just another partisan football. Constitutional principles should come from the people in a different sense than laws, presidential elections, or midterms do. One way would be to hold a constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experience. The convention might proceed in two stages: state, local, or regional versions channeling their results and some of their personnel into a national convention. The convention would propose any constitutional changes its members endorsed, which would then go to a special national referendum. Offered, say, a proposal to reinstate Roe, authorize campaign-finance regulation, or rebalance the Senate, the people would speak via this process as a “we.”

Constitutional conventions have about the same odor in liberal circles as “citizen sheriffs” and the posse comitatus—cranky tricorne-hat stuff interesting only to the populist right. This impression gets a boost from the ongoing conservative effort to call a convention through state legislatures, with the goal of amending the Constitution to require a balanced budget, term limits for federal regulators, and perhaps some other right-wing goals. But nothing about constitutional revision is intrinsically conservative—quite the contrary—and if it seems cranky, that is only because liberals became too comfortable with the idea that the Constitution was basically democratic enough and that the courts were politically congenial. Those conceits are hard to sustain now.

The most basic reason for constitutional change is not partisan at all, despite the fact that the right benefits from a frozen, anti-majoritarian Constitution and liberals are currently angry at the Supreme Court. Re-creating a constitutional politics for living citizens would make democratic self-rule a reality for everyone. The highest civic compliment we could pay one another would be to prefer the results of deliberation and voting today to an old Constitution interpreted by a few judges.

Could it really happen? After all, we start out in the world of Article V’s high barrier to change.

The first thing to see is that it will never happen if we don’t think it will. Mass movements for constitutional change did succeed in the past, before all constitutional politics went to the courts. Mobilized citizens stripped the power to appoint senators from their state legislatures (and forced those same legislatures to ratify the change), authorized a federal income tax, granted women the vote, and, for better or worse, adopted and then repealed Prohibition.

Second, as noted, important constitutional Framers argued that the right to reform the Constitution belonged inalienably to the people. There is something to be said for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority. Constitutional rules are important, and backroom or minoritarian coups are always illegitimate, but if a constitution is about letting a people set their own fundamental law, then the people should be able to act democratically in order to make a more democratic constitution.

What about the dangers of majority rule? Generations of Americans have learned that constitutional barriers protect us from the tyranny of the majority. Would a more democratic Constitution dissolve those barriers?

There is no reason to expect that it would. A periodic convention to reassess the Constitution is a far cry from rolling referenda on whatever question arouses a moment’s passion. The First Amendment, the Fifth Amendment, the equal-protection clause, and so forth would be re-ratified in almost any imaginable constitutional process—perhaps with some clarification that, for instance, “freedom of speech” does not mean unlimited money in politics. In any case, if majorities really wanted to reject these principles root and branch, courts would not save them from themselves for long.

Any government can hurt people. Power is always dangerous. Recent Supreme Court decisions are a reminder that channeling power through old texts and the decisions of robed lawyers does not mean it ceases being power. Democracy is the gamble that, all things considered, we are our own best rulers, and can trust one another further than we can trust any version of minority rule—judicial, geographic, class, or otherwise. To come closer to that principle, we need a Constitution that empowers us, the people (no need for capitalization), to set our own fundamental law.

About the author: 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.