Nicholas Goldberg: Hate the Supreme Court? Our problems actually start with the Constitution

So you’re unhappy with the Supreme Court justices who turned back the clock on environmentalism, abortion, school prayer, and guns? They are angry because they are ideologues with a reactionary agenda, flexing their muscles to eliminate rights, weaken government and endanger the planet?

I also. You are reprehensible.

But let’s face it: the problem isn’t just with the judges. The problem, or at least a significant part of it, lies within the US Constitution itself.

Yes, the hallowed Constitution, the document drafted in 1787 by 55 wigged men in Philadelphia. Our Revered Charter, which lays out the fundamental rules and principles at the heart of the American experiment: freedom of speech and religion, separation of powers, federalism, bicameralism, and all the other controls, rights, promises, and innovations that make this nation what it is.

Stipple style portrait illustration by Nicholas Goldberg

opinion columnist

Nicholas Goldberg

Nicholas Goldberg was the editorial page editor for 11 years and is a former editor of the Op-Ed page and the Sunday Opinion column.

The constitution is getting old these days.

“It was written by a small group of white male landowners who gathered in a largely agrarian East Coast society in the late 1800s,” said David S. Law, a professor in the University of Virginia School of Law, of the courts and Surrounding constitutions study the world. “How could it meet the needs of a very diverse country of over 300 million people in the 21st century, a military and economic superpower in a globalized world, a highly developed post-industrial nation stretching from sea to shining sea? ?”

In its defence, the 235-year-old constitution was extraordinarily resilient. It is the oldest still valid constitution in the world. Many young nations have used it as a model or inspiration, starting with France, whose revolution came just a few years after ours. Nations that emerged from colonialism in the 20th century also used it.

But today it is too inflexible, not democratic enough and sometimes even dysfunctional. Many now see it less as a model to emulate and more as an example of what to avoid.

Here are some of the criticisms.

The Constitution created the undemocratic US Senate, which assigns a state like Wyoming, which has fewer than 600,000 residents, the same representation — two senators — as California, which has nearly 40 million residents.

It established the electoral system that makes it possible to elect presidents who did not win the popular vote.

It has antiquated – and dangerous – provisions, like the anachronistic “right to bear arms” that reflect long-forgotten concerns from post-revolutionary America. Today, no country protects gun rights in its constitution except for the United States, Guatemala, and Mexico.

Furthermore, constitutional thinking has evolved since 1787. Today, most new constitutions contain far more enumerated rights than ours, notes David Law. The right to education, for example, and to privacy, food, healthcare and housing. Many modern constitutions protect reproductive rights, freedom of movement, the right to organize and the rights of persons with disabilities.

Today, more than 100 national constitutions contain explicit references to environmental rights.

Women’s rights are specifically protected in 90% of today’s constitutions.

These kinds of rights, which are not mentioned in our constitution, reflect the problems of the 21st century. No one cares today about billeting troops or building well-regulated militias.

Compared to a contemporary constitution, ours is short and vague. “That’s why we have big debates about interpretative theories,” says Mila Versteeg, who is also a law professor at the University of Virginia. “Because the text of the constitution gives so little guidance.”

The constitution’s lack of specificity leaves much to the interpretation of the Supreme Court, which gives enormous power to this group of nine unelected judges. (Especially since the constitution grants them lifetime as well.)

This system could work reasonably well if the judges interpret broad principles with a view to the present and the future and allow for constitutional adjustment and flexibility.

But today the Court is in the hands of a group of arch-conservatives and so-called originalists who believe in sticking closely to the text of the Constitution and, where interpretation is needed, relying on what they believe the drafters wrote in 1787 believed.

This only makes our constitution look even more outdated.

Of course, if we feel trapped in an archaic constitution, there is a mechanism to revise it: it can be changed.

So we definitely do that, right? Let’s ban corporate funds from politics! Protect gay, transgender and women’s rights! Fix the Senate!

Most nations renew their constitutions every 19 years on average. Thomas Jefferson believed that each new generation should write a new constitution.

Unfortunately, changing the US Constitution is extraordinarily difficult; it requires a two-thirds vote in both houses of Congress and then ratification by three-fourths of the states. A double supermajority.

That is why it has only been changed once in the last 50 years.

And political polarization makes it even harder to change.

I’m not saying that the Constitution needs to be replaced or even drastically rewritten. It has many strengths, and a battle-tested system has advantages. Also, we don’t want to promise too much; Some countries (e.g. North Korea) guarantee rights which they then do not protect.

In addition, opening up the constitution to a dramatic revision could also lead to this undesirable changes. A constitutional convention, which is currently supported by many Republicans on the right, would be fraught with great risks.

But we will never solve our problems without at least having an open, sacred cow discussion about what works and what doesn’t.

It comes as no blow to the drafters to acknowledge that they have not produced a document that fully addresses our 21st century problems. How could Benjamin Franklin, James Madison, or John Jay have foreseen TikTok, or GPS, or unmanned drones, or rapid-fire assault rifles, or school shootings?

They couldn’t have that. But it is hardly unreasonable that we want a constitution that addresses the issues that concern us today, rather than those that faced a new republic long ago.

@Nick_Goldberg Nicholas Goldberg: Hate the Supreme Court? Our problems actually start with the Constitution

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