“The Framers Would Have Wanted Us to Change the Constitution”

Wilfred Codrington III in The Atlantic:

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.”

Share this: