Is the Constitutional Revolution Yearned For Within Reach?

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

Carol Nackenoff

People v. the Court builds on some themes that David Sloss examined in two previous books. In The Death of Treaty Supremacy (2016), he explored the decline of the Constitution’s self-executing rule that treaties supersede state laws.  This is one way in which informal constitutional change has shaped the understanding of rights over the past roughly sixty years. State governments have been permitted to violate non-self-executing international treaties, including international human rights treaties, without authorization from Congress or the Executive.  When these treaties and human rights norms began to yield progress on U.S. Civil Rights, the nationalists’ counterattack began.  The national security exception to human rights law (never passed into law as the Bricker Amendment) began to take root.  Invisibly, constitutional change transformed a mandatory to an optional rule at a time when treaty self-execution was already complicated and filled with legal jargon. Sloss showed that executive branch lawyers do a great deal of constitutional interpretation, especially in matters of foreign affairs, further concealing constitutional transformation outside the courts. Sloss argued, contrary to Larry Kramer’s faith in “popular constitutionalism,” that “in practice, there is a risk that ‘popular constitutionalism’ in the modern era may entail constitutional construction by unelected executive branch lawyers whose conduct is shielded from public scrutiny by entrenched policies and practices that protect the secrecy of executive decision-making.”[1] The focus on how informal constitutional change has occurred in this particular arena  is a useful and welcome perspective that Sloss brings into his somewhat surprising advocacy of reliance on ratified treaties rather than the Bill of Rights and the Fourteenth Amendment to secure rights in People v. the Court. 

I wear my Political Science hat as I consider a subset of Sloss’s proposals for change in People v. the Court, and what he suggests about returning power to We the People to control the government. Sloss finds the Court responsible for part of the problem of polarization and democratic decay, and thinks that, with revision, it could become part of the solution (4).  This, however, would require a revolution in constitutional doctrine.  Even if I think such a shift is unlikely in the near future with the kinds of solutions Sloss proposes, the ideas are worth considering. 

It is refreshing that Sloss has some experience drafting policies akin to those he proposes in People v. the Court. A number of his remedies are well crafted and, in my view, desirable. Yet almost everything Sloss proposes hinges on electing Democrats to the White House and to majorities in the Senate and House in 2028.  Seeking a “constitutional revolution led by the Democratic Party” (185), Sloss may be waiting awhile for a coordinated intervention in the “ongoing, global struggle between democracy and autocracy” (179).   If 2028 gives control of the elective branches to Democrats, these actors still have to share a vision and be willing to play constitutional hardball to implement changes in the composition of the Supreme Court, since current Court doctrine is a major obstacle to “the next revolution in Constitutional law” (the book’s subtitle).  We the People should be able to maintain effective control over the government, he argues; this is a proposition to which the current Supreme Court is not receptive.  Building predominantly on Sheldon Whitehouse Senate bill (excluding the most senior justices—which would be Roberts and Thomas—from appellate jurisdiction while at the same time expanding the size of the Court by allowing each new president to appoint two new justices in alternate years of their term), Sloss proposes barring any federal court from deciding the merits in a case challenging the constitutionality of the new statute until at least two additional Supreme Court justices have been appointed after the statute goes into effect (183).  I wonder what kind of litmus tests a Democratic president would need to use in making appointments, given all the arenas in which constitutional doctrine has been misguided and/or (as Sloss might have it) run off of the rails. 

Sloss recognizes that, with so  much depending on getting a Democratic in both houses of Congress and a Democratic President, it is important to focus some attention on elections and the electorate. Some of his election reform points would be valuable, but not especially feasible. I’m worried about the Trump Administration’s interest in federalizing many more aspects of elections in an attempt to assure Republican victories.  While I agree that “the two dominant political parties have captured the machinery of state government and used their power over state governments to design electoral rules that promote partisan interests at the expense of the common good,” (87), I don’t expect aggressive judicial review to wrest power from the political parties. 

Post-Shelby County (2013) electoral reforms introduced by Republican state legislatures may make it much harder for the Democrats to win House races or even the  Presidency.  Election “monitoring” in 2025-2028 may scare away voters fearful of being harassed and detained by ICE (after all, the areas targeted for monitoring in 2025 are in heavily Latino areas). Mid-census redistricting, now a free-for-all after Rucho v. Common Cause (2019), may further overrepresent Republicans in Congress, especially since there are many “wasted” Democratic votes in large cities and Democrats will have to play hardball to try to match naked Republican partisan gerrymanders. There must be a further assumption that Democrats hang on to Latino/a voters and African American males who were drifting toward Republicans in 2020 and 2024. 

While ignoring the Electoral College, Sloss takes on Buckley v. Valeo, Citizens United, money as speech, and the issue of campaign finance reform; reinvigorating the 1965 Voting Rights Act; and gerrymandering.  He considers ways in which the marketplace for elective office could be made more competitive. Sloss believes the “dormant elections clause” gives Congress a great deal of power to regulate elections, much like the dormant commerce clause takes power out of the hands of states. 

Sloss also tackles misinformation as a sign of democratic decay and as an electoral problem. “It is questionable,” he writes, “whether American democracy can survive the collapse of epistemic authority . . . democracy cannot function effectively without agreement on shared facts” (99).  He proposes regulation solely of misinformation (electronic amplification of speech, large media) that is election-related disinformation.  Government regulation of speech that is “Madisonian” as opposed to “libertarian” focuses on the goals of the First Amendment as truth-seeking and democracy-promoting (89).  But apart from some very simple “facts” (my grandmother believed that anyone who believed the U.S. had landed men on the moon was duped), people will tend to believe things to be true based on where they stand in political space, and take their cues from sources they trust and that tend to confirm their pre-existing orientations. Sloss’s remedies, allowing some content-based restrictions on speech, may not bring us closer to believing the same facts. Do conspiracy theories fit neatly here?  Does election-related disinformation cover communication by QAnon followers that globalists and Democratic elites are torturing children to harvest their blood to get the chemical adrenochrome, which they then inject in order to stay healthy and young?  Does it cover far-right hate groups, neonationalists, and Christian nationalists? Sloss does not explore such problems. And what about people who consume no news, deliberately immersing themselves in sports, reality TV, video games, and non-political social media (who are, according to Markus Prior, political moderates if and when they do vote).[3] 

Sloss is influenced by the work of Bruce Ackerman and John Hart Ely.  From Ackerman, he borrows the claim that landmark statutes and judicial super-precedents are the engines of constitutional revolution.  (179, 190, 192).  For Ackerman, non-Article V constitutional amendments that result from the will of “we the people” are, or ought to be durable.  Ackerman offers a six-stage model of constitutional transformation, highlighting the role of political parties, elections, and presidents as drivers of such change.  Embracing this “movement, party, Presidency model,” (180), Sloss also reminds readers about other kinds of informal constitutional change. I began this post with his example of the de Facto Bricker Amendment; he also points to the de facto ERA. 

Especially influenced by John Hart Ely’s Democracy and Distrust, Sloss shares Ely’s endorsement of strong judicial review as the remedy for barriers to entry to the political process and problems of misrepresentation. The greatest warrant for robust judicial review is to correct such failures. Short of this, the Court should restrain itself.  He wants to privilege democratic lawmaking over judicial lawmaking (191).  Sloss seems to define problems of misrepresentation and barriers to entry more widely than did Ely; for Ely, formal-legal representation seems to be enough. What about electoral processes that, even if formally open, create skewed rates of participation, such as the primary system for choosing presidential candidates?[4] 

A key argument Sloss makes is that “[i]ncorporation doctrine aggrandizes federal judicial power aet the expense of the states; it has no basis in the text or original understanding of the Fourteenth Amendment”  (32); the citation at footnote 190 is simply “see Fairman (1949).” This is shockingly cavalier to academic readers.   Sloss can argue against Akhil Amar’s Bill of Rights, but it is rather strange to simply ignore both Amar and the excellent work of Pamela Brandwein.  Is Sloss unaware that Crosskey has been somewhat rehabilitated, that Brandwein has linked Fairman’s position to the Bancroft School, and that it should be understood in the context of states’ rights and southern fears of the power of the federal government to intervene in segregation?  Nearly thirty years ago, Brandwein mapped the Fairman-Crosskey conflict onto debates about the proper role of the Court in the New Deal Era.[5]  Sloss seems to want to take a distinctly anti-incorporation stance because it is a key part of his argument that application of treaties will yield better results and owe less to the Court, but I am not at all convinced that arguing against a constitutional basis for incorporation is going to be persuasive. 

It is not completely clear how Sloss determines when We the People are maintaining effective control (is it simply legislative supremacy?) and where Sloss might part company from decisions made by We the People that fall short of triggering the kind of judicial scrutiny Ely endorsed.

What would it mean, with a currently weak Congress, to try to protect and extend rights on the basis of international law or on the International Covenant on Civil and Political Rights (or the Convention on Racial Discrimination) rather than on the Bill of Rights and the 14^th Amendment?  Would eradicating incorporation doctrine make government more responsive to the people? The nation ratified the Bill of Rights and the 14^th Amendment. The people had arguably less input in remote international agreements than they did in these constitutional amendments.  Sloss’s argument is that  Congress could override judicial decisions based on treaties, and therefore could check the Court, whereas it has less capacity to do so with decisions based on constitutional amendments. There may be other ways to keep the Court from having the final word on the meaning of the Constitution; a good deal has been written on this very theme and some nations provide for an override.  But Sloss certainly offers a provocative route in People v. the Court. 

Carol Nackenoff is Richter Professor Emerita, Swarthmore College. You can reach her by e-mail at cnacken1@swarthmore.edu.