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How Can We Fix the Constitution?

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Who Will Save Us From the Courts?

We will! How to break the judicial stranglehold on constitutional interpretation.

The Supreme Court
The Supreme Court

Photograph by Saul Loeb/AFP/Getty Images.

Judicial Review (14th Amendment)

In recent years the Supreme Court has destroyed campaign finance reform, hobbled public school integration, and undermined Title VII—the federal law that guarantees equal treatment in employment. Soon enough it is likely to invalidate affirmative action in higher education and gut the Voting Rights Act. It’s past time to ask whether the courts are still the best guardians of constitutional values—if they ever were.

Judicial review—the idea that unelected judges can strike down the actions of democratically elected governments as unconstitutional—was basically a clever power grab by the Supreme Court at the beginning of the 19th century. Ever since, the courts have jealously guarded their monopoly on constitutional interpretation. For instance, the Fourteenth Amendment explicitly gives Congress the power to enforce its guarantees. But when Congress passed the Civil Rights Act of 1875—which would have prohibited race discrimination in public transportation, hotels and theaters—the Supreme Court struck it down because it went beyond what the justices thought the 14th Amendment should require. It was almost 90 years before these basic civil rights were finally put in place, thanks to Congress, via the Civil Rights Act of 1964.

To be sure, the 1964 law also reinforced and refined rights first established by the court, including school desegregation in Brown v. Board of Education. That ruling was widely flouted by recalcitrant school districts until Congress reinforced it, proving that rights take root when they enjoy the support of elected branches of government. More recently, however, the stranglehold of the courts over constitutional interpretation—tightened in the 1997 case City of Borne v. Flores and the 2000 decision U.S. v. Morrison –has kept school districts from finishing the job of school desegregation voluntarily: In 2007, in the case Parents Involved in Community Schools v. Seattle School District, the Supreme Court invalidated two quite modest desegregation policies that used race as a factor in school assignment, clouding almost all voluntary desegregation efforts.

Since high school civics we’ve been told that the courts protect us from narrow-minded or overreaching legislatures, but who will protect us from the courts?

Judicial review may be necessary, but the courts should block only clear violations of the Constitution—not democratic efforts to enforce it. A judicial monopoly on constitutional interpretation is bad for democracy and bad for the protection of civil rights. It’s bad for democracy because judicial review is inherently anti-democratic. As law professor Alexander Bickel complained in 1962: “When the Supreme Court declares unconstitutional a legislative act or the action of an elected executive it thwarts” the will of the people “it exercises control, not on behalf of the prevailing majority, but against it.” This problem is worse today than ever before. Most of the politically controversial decisions of the Warren Court in the 1960s were unanimous or nearly unanimous. By contrast, the most controversial opinions of recent years have been 5-4 opinions accompanied by forceful and compelling dissents. A 5-4 split indicates that the relevant law isn’t clear and therefore the justification for overruling the democratic process is weak. When a bare majority of the Supreme Court decides a controversial question, it’s less like legal analysis than like a plebiscite with nine voters. Why should that vote trump the democracy that includes the rest of us?

The Constitution is too important to be left to judges. We need the inventiveness, legitimacy, and practical expertise of democratically elected governments to define and enforce constitutional rights. We should amend the Constitution to make it clear that Congress has broad authority to pass laws enforcing the guarantees of the 14th Amendment—or better still, all constitutional rights. This won’t solve all of the problems I’ve discussed. It doesn’t address, for example, the role of states and local governments in upholding the Constitution. But it’s a start that would reorient the way we think about the relationship between the various branches of government with respect to constitutional meaning.

Like most constitutional provisions, my proposals leave out a lot of details. But the basics are clear:

The power of Congress to enforce the provisions of the 14th Amendment to this Constitution shall include the power to regulate both state and local governments? governmental entities? and private parties by appropriate legislation.


Congress shall have the power to enforce the provisions of this Constitution by appropriate legislation. An Act of Congress enforcing the Constitution may be invalidated only by the unanimous decision of a three-judge panel of a Federal Court of Appeal. Congress shall have the right to appeal such a decision to the Supreme Court and the agreement of no less than two thirds of the Justices of the Supreme Court shall be necessary to uphold any such ruling and invalidate the legislation.

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