Some thoughts about the direction of American governance on this Fourth of July weekend.
Recent Supreme Court decisions have pushed American government in a decidedly conservative direction, resulting in a trend that doesn’t reflect the wishes or priorities or values of the American public. The conservative Heritage Foundation has trained its sights on progressive American government for over 30 years now, and its influence on our judiciary is bearing remarkable success. Overturning Roe v Wade, giving Donald Trump immunity from criminal prosecution, kneecapping the EPA and other federal agencies, giving corporations unlimited influence over elections, allowing weapons of war on American streets, injecting Christian religious principles into American law — these are all examples of SCOTUS decisions that don’t reflect the values of most Americans. Yet now we must all live with the impacts of those decisions. We fight back by electing more and better Democrats, but the damage that falls out from those recent decisions is likely to harm Americans and American society for many years to come.
SCOTUS is the highest court in the land. Their role traditionally has been to interpret Congressional actions. But they have now expanded their role to include imposing their preferred policy changes, so they can’t be stopped by simple legislative corrections. Plus legislation can always be reversed when Democrats are out of power. Thus, changes to the Constitution become necessary.
I hereby propose a number of Constitutional amendments that can overturn and correct many of these decisions. Yes, I know getting Constitutional amendments passed is very difficult, but we have actually done it many times in our history. I would argue that the American public is sufficiently frustrated right now to make some radical changes. If that frustration results in upcoming elections that move us toward a more liberal Congress and Presidency, then changes like these become more realistic. So, let’s consider addressing the clear injustices coming from SCOTUS with the following amendments to the Constitution. I would also note that if some or all of these proposed amendments are part of the Democratic platform, voters will recognize that we are working to correct and counteract the odious SCOTUS rulings. And many of these proposals are uncontroversial and bipartisan, so that may make the path easier.
Please keep in mind that IANAL and there may be unintended consequences of these specific amendment texts, or indeed, more effective ways to write them. In some cases, a Constitutional amendment may not be the most effective way to address these issues. I invite suggestions from commenters.
Presidential immunity (and SCOTUS corruption?):
- Proposed Amendment 1: Except where stated in the Constitution, the laws of the United States and of the individual states and the penalties prescribed therein shall apply to all elected and appointed office holders and employees of the United States government during the execution of their official acts and duties.
It saddens me that such an amendment is even necessary, but this will clearly obviate the outrageous immunity from prosecution given to Donald Trump by the most recent SCOTUS decision. It is not clear whether such an amendment could apply retroactively to any current cases against Donald Trump, but it would certainly apply to any future President who might consider criminal behavior to further their own personal gain. In fact, if worded properly and interpreted broadly, this amendment might even curtail some of the clearly unethical behavior of the justices themselves.
Abortion rights:
- Proposed Amendment 2: The right to an abortion shall not be abridged nor infringed by the United States or any of the individual states until fetal viability.
The SCOTUS opinion in Dobbs overturned 50 years of precedent established by Roe v Wade. Since Roe depended on a right to privacy that is not explicit in the Constitution, it was always subject to reversal by a more conservative interpretation of the Constitution. A more straightforward but narrower statement of women’s right to choose, expanding on the language in Roe, may be necessary to reinstate the protections of Roe. Congressional action could arguably be used to reverse Dobbs, but an unscrupulous (and religiously motivated) SCOTUS might simply declare such legislation unconstitutional. So let’s put it in the Constitution.
Federal agencies and federal regulations:
- Proposed Amendment 3: Congress may create federal agencies to execute the laws of the United States and may authorize those agencies to carry out such laws.
This amendment addresses the SCOTUS ruling overturning Chevron that removes the authority of federal agencies like the EPA to execute the laws that Congress has passed. It is intended to allow the experts at each federal agency to implement specific regulations that address the big-picture problem that Congress was trying to solve. There may be a better way to write this text that would allow the EPA, SEC, ATF, IRS, and other agencies to do what Americans have come to expect from them.
Citizens United and campaign finance laws:
- Proposed Amendment 4: For the purposes of campaign finance laws, the protections of the First Amendment to the Constitution shall not be construed to apply to any national bank, or any labor organization, or any corporation organized by authority of any law of Congress, except as it applies to individual members of those organizations.
Since the Citizens United decision that opened the floodgates to corporate influence over elections was based on applying the free speech rights of the First Amendment to corporations, it seems reasonable that explicitly denying that connection would return US election laws to their pre-Citizens state, and would recognize laws restricting political donations from corporations.
Correcting the Supreme Court bias:
Next, we turn our attention to the fundamental reason that the courts have become so conservative in the face of an increasingly progressive American electorate. In the short term, it is necessary to neutralize the impact that appointments to SCOTUS by Republican Presidents have had. We can do that by adding justices appointed by Democratic Presidents. There is a clear rationale for expanding the court, and it is the exact rationale that was used to expand the court to its current nine-member size. In fact the slowness of our SCOTUS to address many of the cases brought before it forms its own justification for adding more members.
- Proposed Amendment 5: The number of Supreme Court justices shall equal the number of United States Circuit Courts of Appeal, with one justice assigned to oversee each Circuit.
Since there are currently 13 federal circuits, the next President will be able to add 4 justices to the current 9 members. Any future expansion of the federal court system would automatically trigger additional justices. Note that this can also be accomplished by legislation, but if it is in the Constitution, it is much harder to change when a Republican is in office.
This amendment might also be expanded to include a term-limits provision that would prevent the kind of endless dominance we seem to have been cursed with. Maybe something like “The term of office of each Supreme Court justice shall terminate when the justice has served for 25 years or reaches the age of 70 years, whichever comes first.”
Finally, as long as we are addressing injustices baked into the Constitution, why not fix a major source of all of our problems: the Electoral College.
Eliminating the Electoral College:
- Proposed Amendment 6: The President of the United States shall be elected by a plurality of the popular vote among the states, District of Columbia, and territories authorized by legislation. The electors in each State or territory shall have the qualifications requisite for electors of the most numerous branch of the legislatures of each State or territory.
There may be other pressing issues that I have overlooked (like contraception or reasonable gun laws or DC statehood or gerrymandering), or perhaps better ways to address the imbalanced, conservative government that the current SCOTUS is imposing on us. It is possible that legislation or executive orders can mitigate some of the damage on a shorter term basis. I have no idea how many years of oppression and a fight to regain our rights lie ahead. It’s completely possible that everything I’ve said here is delusional fantasy, but I had to put out some thoughts and see where they take us.
Comments are welcome.