Balkinization: Can this Constitution be Saved?

Can this Constitution be Saved?

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Julie C. Suk

After the Supreme Court’s blockbuster decisions of the 2021 Term, progressive politicians have described the Supreme Court as “rogue,” accusing the new conservative majority of destroying the Constitution and the rights it protects. Hence, the question posed for this LevinsonFest, “Can this constitution be saved?,” appears tailored to this moment of constitutional crisis, wherein the defenders of reproductive and climate justice are rallying to correct Justice Alito’s perversion of “this” constitution. “No, Justice Alito, Reproductive Justice Is In the Constitution,” reads a June 26 New York Times headline by leading Black feminist scholar Michele Goodwin. But which Constitution do we mean? Is it obvious that Justice Alito’s declaration, “The Constitution makes no reference to abortion,” distorts its meaning? Should feminists, antiracists, and all the proponents of twenty-first century inclusion and justice to “save” it from a Court that’s gone off the rails?

Alternatively, Dobbs, Bruen, and West Virginia v. EPA are what saved our eighteenth-century constitution (and its modest nineteenth-century revision), restored to its intended glory by Alito and a Court skeptical of modern governmental intrusions through the regulation of guns and climate, yet respectful of governmental intrusions on reproductive matters. Alito’s opinion in Dobbs reveals a Court that intends to take back the Constitution to the mores that they attribute to the 18^th and 19^th century Founders and Framers—white men who owned Black slaves and exerted dominion over wives who had no independent legal rights. And, if that is not the Constitution that the American people want today, why should it be saved? Should progressives be looking for a way to save it?
Sandy Levinson’s Our Undemocratic Constitution was an “emperor has no clothes” moment. Sandy said in 2006 what is both undeniable and widely resisted in this moment, even by the most progressive branches of the Left: That the United States has a constitution that may not be worth saving in the twenty-first century, even if it can be. Especially if it can be. Yes, this Constitution laid the foundations for a republic that was pretty democratic by 18^th century standards. But a 1787 Constitution has become a cage, rather than a pedestal, for people attempting to make laws democratically, as evaluated by twenty-first century standards for the fundamentals of democratic self-government. The basic institutions that the Constitution designed and/or assumed, with states as the primary sites of popular sovereignty, a Senate with equal representation by the states regardless of population, and federal judges who remain in power longer than pre-enlightenment princes and oligarchs, obstruct American citizens today from collectively governing ourselves reasonably. The constitutional design has made it hard to implement twenty-first century norms of including women and nonwhite people as rightsbearers and fully empowered participants. The federalism and a Senate designed for 18^th and 19^th century popular sovereignty do not facilitate or sustain laws to address the twenty-first century threats to life, liberty, and the pursuit of happiness, including gun violence and climate change.

Yet, in the last few years, progressive law professors like Ganesh Sitaraman and Joseph Fishkin and William Forbath have urged that our Constitution is, at its foundations, “middle-class” and “anti-oligarchy.” They provide compelling historical and doctrinal accounts of the presence of such values and voices throughout our constitutional development. But these voices did not shape the institutions that are the most significant barriers to the anti-oligarchy constitution today, such as the Senate, the Supreme Court, and the Article V amendment process.

From the very beginning, the people whom the Founding Fathers assumed to be of inferior legal status claimed that the Constitution’s core commitments actually required their emancipation. In her famous “Remember the ladies” letter to her husband, for instance, Abigail Adams presented a feminist interpretation of the Declaration of Independence even before the Declaration was written and signed. “[A]ll men would be tyrants if they could,” she wrote, declaring the need to check their power. “If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.” Three months later, the Declaration of Independence established, as the founding principles of the American republic, the consent of the governed as the primary requirement of legitimate government, and the right of the people to “alter or abolish” tyranny or other forms of government not worthy of such consent.

Nonetheless, Abigail Adams’ letter did not stop the legal dominion of husbands over wives in the founding documents of the American republic. Yet, decades after Abigail’s death, Elizabeth Cady Stanton deliberately mimicked the language of the Declaration of Independence in drafting the Declaration of Sentiments at Seneca Falls. Repeating that governments derived their just powers from the consent of the governed, it declared that a “long train of abuses” amounting to a despotic government not only justified, but obligated those subject to such usurpations to “throw off such government.” But even after women contributed to successful efforts and a civil war to abolish the unjust and slaveholding governments, the reconstitution of the federal government and its relationship to the states after the Civil War did not include the equal rights of women in the Constitution—to vote, to exercise a profession, to own and control property. In 1880, Susan B. Anthony testified in Congress that she had wanted to believe that this post-Civil-War Constitution provided “me and all women the enjoyment of perfect equality of rights everywhere under the shadow of the American flag,” but she realized that courts disagreed. Therefore, she urged Congress, “true to your own theory and assertion, should go forward to make more Constitution,” i.e. to propose what became the Nineteenth Amendment nearly forty years later, years after her death, explicitly guaranteeing the vote to women.
The movements for women’s constitutional rights—including the abortion rights movements reacting to the overruling of Roe v. Wade in 2022—have a long tradition of claiming the existing Constitution as the legal and moral authority for their asserted rights, from women’s right to vote and hold property to the right to terminate a pregnancy. And when this move clearly failed—as the claim to women’s suffrage under the Fourteenth Amendment was rejected by the Supreme Court in Minor v. Happersett in 1875—only then did talk of “mak[ing] more Constitution” emerge, beyond saving and stretching the Constitution that already governed. It is similarly remarkable, as Sandy points out in the opening pages of Our Undemocratic Constitution, that Frederick Douglass endorsed the antebellum Constitution, believing the 1787 Constitution to be deeply antislavery at its core. (p. 4) The widespread belief on the Left that the Constitution is committed to principles of feminism, antiracism, and even reproductive justice—with sharp criticism of Sam Alito and four other Justices for their blindness to this—is part of this long tradition of faith in the founders’ Constitution. In response to decisions like Dobbs and Bruen, its critics denounce the Court, not the Constitution, despite the obvious limits of the Constitution’s text and provenance. Many people are saying we need a new Court, with proposals for significant reforms such as term limits and court expansion gaining much more mainstream support than imagined twenty years ago (even after Bush v. Gore). But it’s hard to find anyone demanding a new Constitution, along the lines of modern constitutions written after World War II and throughout the twentieth and twenty-first centuries, with institutions designed to be more capable of governing a profoundly vast and diverse twenty-first century society, and with more textual tools for these institutions seeking to address urgent twenty-first century problems.

I suspect that the reason for this silence is that we are, as Sandy put it, “trapped inside the Article V cage.” (Levinson, Our Undemocratic Constitution, p. 5). It has been impossible to amend the Constitution for about a half century. The Amendment that was promulgated in 1992 (requiring Congress to wait until the next election cycle before making any self-rewarding salary raises can go into effect) is not a modern amendment; it was drafted by James Madison with the original bill of rights in 1789. When the Supreme Court purportedly returned the question of abortion back to elected legislatures in Dobbs, an obvious solution to Roe’s demise would be for Congress to adopt legislation like the Women’s Health Protection Act, or even to amend the Constitution to make explicit the equal citizenship stature of women, including with regard to reproductive autonomy. Indeed, at the state level, the New York state legislature passed an Equal Right Amendment to the state constitution a week after Dobbs was decided, which, if passed again in the next legislative session and ratified in a referendum, will not only prohibit discrimination against women (on the basis of sex or gender), but also prohibit discrimination based on pregnancy, pregnancy outcomes, and reproductive healthcare or autonomy. The state ERA that New York passed is widely regarded as an entrenchment of the right to abortion.

By contrast, efforts to protect access to abortion on the federal level are unlikely to succeed due to features of our constitutional design, namely the design of the Senate to represent the states rather than the people. The Women’s Health Protection Act has been passed twice by the House of Representatives, only to be obstructed by the filibuster in the Senate. If the Senate were designed to be proportionately representative of the will of American voters, instead of allocating two Senate seats to every state regardless of state population, we would have not only a federal law protecting abortion access, but also, paid parental leave, pregnant worker fairness laws, more robust equal pay statutes, and other measures that promote women’s full inclusion in the polity as citizens, which the current Senate has filibustered. The Senate has also refused to act on the federal Equal Rights Amendment, which could be added to the Constitution if the Senate followed the House in eliminating the ratification deadline after the requisite number of states completed ratification after the deadline (which itself was imposed due to the Senate dragging its heels in 1970-72). There is much talk about eliminating the filibuster, but the more fundamental problem, filibuster aside, is that the Senate’s design is deeply undemocratic, as Sandy noted, and as Justice Stevens also highlighted in his 2017 book, Six Amendments.

But changing this design feature of the Senate is effectively made impossible by the Constitution—even by its own rules for change in Article V. While Article V requires the passage of most proposed amendments by two thirds of both houses of the legislature plus ratification by three fourths of the state legislatures, but it does not allow any amendments that would change the equal representation of the states in the Senate without the consent of each state. This is the feature that caused Sandy to refer to Article V as a cage. Because we can’t amend the Constitution under its own amendment rule, efforts to save it through modern interpretation seem to be the only plausible path to modernization and inclusion of those excluded from legal rights at the founding. But as long as Dobbs’ frozen-in-1868 interpretation of the Fourteenth Amendment is part of that path, neither Article V nor Article III can save this Constitution from itself.

So where do we go from here? I have just returned from my lecture in Philadelphia at the National Constitution Center’s seminar for high school educators, wrestling with their request that I discuss “the Founding Principles in Modern Social Movements,” answering such questions as, “How do we define the three key principles at the core of the American Revolution: popular sovereignty, natural rights, and the rule of law?;” and “How have modern social movements been influenced and impacted by the three founding principles?” I think back to the moment in Our Undemocratic Constitution when Sandy realizes, sitting at the National Constitution Center in 2004, that he would not re-sign the Constitution, even while acknowledging that it was worth signing in 1787 (p. 5). Modern social movements have been influenced and impacted by much more than these three founding principles—including the founding principles of modern constitutional democracies throughout the world and the institutional architecture necessary to realize them. Almost all the Scandinavian countries with highly developed social welfare states, designed to reduce social inequality, have unicameral legislatures. Most countries have term limits on the judges who adjudicate constitutional meaning. And many of our peer democracies have constitutional courts in addition to supreme courts, which also diffuses judicial power and encourages more dialogue about constitutional meaning with the elected branches.

The first step is teaching civics to young people differently, and Sandy has been at the forefront, with Cynthia Levinson, on Fault Lines in the Constitution. Veneration of the Founding Fathers and the 1787 constitution should have ended a long time ago. Even if it stays, high-school students should be taught about the modern constitutions outside the United States. They should be encouraged to rewrite the U.S. Constitution and to do so—if only as a thought experiment—without being constrained by Article V as the roadblock. One of the best experiences of my career so far was working with Sandy and the group he convened to draft the Democracy Constitution. It should not be an exercise only for law professors—every American citizen should engage in such an exercise before they are old enough to vote. Within a generation, perhaps the question we will be raising is not “Can this constitution be saved?” but rather, “How do we make a constitution worth saving today?”

Changing the constitution worth saving today—rewriting it with full inclusion of all humans who call the United States home, will not happen overnight, and possibly not within our lifetimes. But the work of educating new generations of citizens about the whole truth about our constitutional history and about the whole range of constitutional possibilities will take time. A constitutional convention for a new constitution will be pointless—and possibly disastrous—unless that work is done first.

Julie C. Suk is Professor of Law at Fordham University School of Law. You can contact her at jsuk4@fordham.edu.

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