I get your point, Professor, but I think you put your thumb on the scale in a few ways here to favor your argument. First, “the Constitution is broken” is an overstated strawman - what I hear is people saying “The Constitution needs to be updated in a few key ways to keep up with contemporary challenges.”
Second, it is too pat to assert, as the mainstream media too often does, that both sides are evenly balanced. In fact, if you look at the polls, many of the more progressive positions on gun safety, abortion, the environment, etc. are widely popular. The “even balance” illusion comes precisely from the outdated Constitutional relics like the Electoral College and small state residents having much more power in Congress than people from large states. Assuming “equal balance” distracts from the reality of the power exerted by such interest groups as the gun lobby, the fossil fuel industry and the religious right.
While the Constitution was supposed to help protect minorities from the majority, what it has become instead is a way to enshrine minority rule or minority obstruction against the majority vote.. In this way, it is indeed broken.
Madison's concern was for property owners. Rights to be totally overrun by voters who didn't own property.
For all the respect most of us have for constitutional government it will never satisfy all. Harsh realities of political systems will prevent that. There is a lot to say in supporting the difficult process of constitutional change in the American system. It has codified basic human rights and thereby protects these right from an overzealous majority.
Having said this, it does seem the means to change the document needs a reassessment given the number of issues that cannot be resolved politically. We rely primarily on Supreme Court rulings that have become so saturated with whatever politics carries the moment. But on the whole this particular document of ours has strengths and citizens can change it hard though it is.
Ironic today we have one candidate who suggests that he is one or two steps away from suspending the very idea of constitutional democracy. Will we prevail? Any debate over this drastic step would throw us into a completely new realm of thinking about governance.
Progressives are, by definition, constrained more by our largely classical liberal Constitution.
The progressive era of the early 1900s understood this and amended the constitution accordingly. Unfortunately for today, action and planning of that kind is largely absent from progressive thought. Although props to Gavin Newsom for being honest about repealing the 2nd.
One legislative fiix progressives should consider:
Expand the House of Representatives to 1000+ members. This can be done by legislation.
1000+ house seats would weaken the relative power of 100 Senate seats in the Electoral College. Instead of 270 to win, it could be 551+.
Of course, it would also weaken the current Dem Nomenklatura who run the house and their aged politburo members.
First, as to ages, the GOP side of the aisle has their own cadre of old people- McConnell, Grassley, etc. And Pelosi stepped aside for Hakim Jeffries. Biden stepped aside for Kamala. I have yet to see any GOP person do the same.
Second, expanding the representation in the House, even if it adds bodies to the Electoral College, does nothing to weaken the power of of the Senate to obstruct.
And expanding representation is irrelevant if we don't get rid of gerrymandering. While there are some Democratically run states gerrymandered to keep a Dem majority, numerous GOP run states are in this condition: Wisconsin's legislature and North Carolina's are GOP held regardless of who is governor. (Michigan was that way from 2010-2020) Ohio, West Virginia Utah,Texas, Arkansas and Louisiana all gerrymandered to enshine GOP control.
In an otherwise very good column, I sense a bit of contradiction here:
“Critics of the Supreme Court’s undemocratic decision-making on Dobbs were happy with it on Roe.
. . . .
How about hot button issues like abortion and gun control? Post-Dobbs, abortion law is in the hands of elected officials. Laws vary by state. Texas has essentially outlawed abortion. California allows it with modest restrictions. This variance seems to reflect the divergent sentiments of voters in the two states.”
It was Dobbs that allowed the “divergent sentiments of voters in the two states” to be expressed.
"It was Dobbs that allowed the “divergent sentiments of voters in the two states” to be expressed."
Right. Which is what progressives don't like about it. They think that abortion is a right and not something fit for people to vote on. Just like freedom of speech shouldn't be put to a vote.
Proper health care is a right- or ought to be and abortion is part of that care. It's odd that only women get their bodies legislated- Kamala Harris had it exactly right when grilling Brett Kavanaugh: "Can you think of any law that legislates the male body"
My criticism isn't just with this one particular ruling in Dobbs.
The supreme court has become a corrupt unelected body, basically, saying that it can do whatever it wants with no checks whatsoever from congressThe Supreme Court has become a corrupt unelected body, basically, saying that it can do whatever it wants with no checks whatsoever from Congress.
Made up doctrines like major questions and non delegation are are ridiculous creations in order to tip the scale of what shouldn't even be on the court docket?
Just imagine if Congress passed a law, regulate the Supreme Court and the court's justice says that law is unconstitutional, because that's where we're headed.
And don't even get me started on the court, ignoring a standard legal concept called standing.
Republican states sued to the Supreme Court. The Biden administration's decision to forgive some student loans.
Under what grounds do the states that sued half standing to even bring that suit? There's no harm to them. And in fact, there's benefits in the fact that forgiven student debt will mean more disposable income on the part of the people who held that debt, which they can spend in their communities and buy houses.
I get your point, Professor, but I think you put your thumb on the scale in a few ways here to favor your argument. First, “the Constitution is broken” is an overstated strawman - what I hear is people saying “The Constitution needs to be updated in a few key ways to keep up with contemporary challenges.”
Second, it is too pat to assert, as the mainstream media too often does, that both sides are evenly balanced. In fact, if you look at the polls, many of the more progressive positions on gun safety, abortion, the environment, etc. are widely popular. The “even balance” illusion comes precisely from the outdated Constitutional relics like the Electoral College and small state residents having much more power in Congress than people from large states. Assuming “equal balance” distracts from the reality of the power exerted by such interest groups as the gun lobby, the fossil fuel industry and the religious right.
Excellent piece, thank you
While the Constitution was supposed to help protect minorities from the majority, what it has become instead is a way to enshrine minority rule or minority obstruction against the majority vote.. In this way, it is indeed broken.
Madison's concern was for property owners. Rights to be totally overrun by voters who didn't own property.
Really enjoyed this essay!
For all the respect most of us have for constitutional government it will never satisfy all. Harsh realities of political systems will prevent that. There is a lot to say in supporting the difficult process of constitutional change in the American system. It has codified basic human rights and thereby protects these right from an overzealous majority.
Having said this, it does seem the means to change the document needs a reassessment given the number of issues that cannot be resolved politically. We rely primarily on Supreme Court rulings that have become so saturated with whatever politics carries the moment. But on the whole this particular document of ours has strengths and citizens can change it hard though it is.
Ironic today we have one candidate who suggests that he is one or two steps away from suspending the very idea of constitutional democracy. Will we prevail? Any debate over this drastic step would throw us into a completely new realm of thinking about governance.
Progressives are, by definition, constrained more by our largely classical liberal Constitution.
The progressive era of the early 1900s understood this and amended the constitution accordingly. Unfortunately for today, action and planning of that kind is largely absent from progressive thought. Although props to Gavin Newsom for being honest about repealing the 2nd.
One legislative fiix progressives should consider:
Expand the House of Representatives to 1000+ members. This can be done by legislation.
1000+ house seats would weaken the relative power of 100 Senate seats in the Electoral College. Instead of 270 to win, it could be 551+.
Of course, it would also weaken the current Dem Nomenklatura who run the house and their aged politburo members.
So it ain't gonna happen.
First, as to ages, the GOP side of the aisle has their own cadre of old people- McConnell, Grassley, etc. And Pelosi stepped aside for Hakim Jeffries. Biden stepped aside for Kamala. I have yet to see any GOP person do the same.
Second, expanding the representation in the House, even if it adds bodies to the Electoral College, does nothing to weaken the power of of the Senate to obstruct.
And expanding representation is irrelevant if we don't get rid of gerrymandering. While there are some Democratically run states gerrymandered to keep a Dem majority, numerous GOP run states are in this condition: Wisconsin's legislature and North Carolina's are GOP held regardless of who is governor. (Michigan was that way from 2010-2020) Ohio, West Virginia Utah,Texas, Arkansas and Louisiana all gerrymandered to enshine GOP control.
In an otherwise very good column, I sense a bit of contradiction here:
“Critics of the Supreme Court’s undemocratic decision-making on Dobbs were happy with it on Roe.
. . . .
How about hot button issues like abortion and gun control? Post-Dobbs, abortion law is in the hands of elected officials. Laws vary by state. Texas has essentially outlawed abortion. California allows it with modest restrictions. This variance seems to reflect the divergent sentiments of voters in the two states.”
It was Dobbs that allowed the “divergent sentiments of voters in the two states” to be expressed.
"It was Dobbs that allowed the “divergent sentiments of voters in the two states” to be expressed."
Right. Which is what progressives don't like about it. They think that abortion is a right and not something fit for people to vote on. Just like freedom of speech shouldn't be put to a vote.
Proper health care is a right- or ought to be and abortion is part of that care. It's odd that only women get their bodies legislated- Kamala Harris had it exactly right when grilling Brett Kavanaugh: "Can you think of any law that legislates the male body"
My criticism isn't just with this one particular ruling in Dobbs.
The supreme court has become a corrupt unelected body, basically, saying that it can do whatever it wants with no checks whatsoever from congressThe Supreme Court has become a corrupt unelected body, basically, saying that it can do whatever it wants with no checks whatsoever from Congress.
Made up doctrines like major questions and non delegation are are ridiculous creations in order to tip the scale of what shouldn't even be on the court docket?
Just imagine if Congress passed a law, regulate the Supreme Court and the court's justice says that law is unconstitutional, because that's where we're headed.
And don't even get me started on the court, ignoring a standard legal concept called standing.
Republican states sued to the Supreme Court. The Biden administration's decision to forgive some student loans.
Under what grounds do the states that sued half standing to even bring that suit? There's no harm to them. And in fact, there's benefits in the fact that forgiven student debt will mean more disposable income on the part of the people who held that debt, which they can spend in their communities and buy houses.