By Rudy Barnes, Jr., July 8, 2023
Americans can think of the Constitution as a legal and political Bible, just as Jews think of their Hebrew Bible with its Mosaic Law as God’s law; and Muslims think of their Quran with its Sharia law in the same way. They are all ancient documents that provide forms of authority in a changing world, but only the Constitution can be amended to keep up with the times.
The Bible and Quran are divine and inviolate, while the Constitution is interpreted by a Supreme Court and can be amended by the people. They reflect different concepts of political sovereignty. God is the sovereign power in the Bible and the Quran, while the people are the sovereign power in the Constitution. It is of the people, by the people and for the people.
The Supreme Court (SCOTUS) recently interpreted provisions of the Constitution that changed previous interpretations; but SCOTUS did not change the Constitution itself--only the people can do that. It’s much more complex to amend the Constitution under Article 5 than for Congress to pass legislation, but there have been 26 amendments to the Constitution.
Jill Lepore has argued that amending the Constitution is effectively impossible, but the 26 Constitutional amendments refute her argument. Like many unsuccessful advocates for change, Lepore equates the difficulty of amending the Constitution with the impossibility to change it; but change is possible as a matter of public will in accordance with Article V.
Recent decisions of SCOTUS on affirmative action, gay rights and the forgiveness of student debt illustrate how shifting majorities on SCOTUS can defy partisan expectations. Lepore and others have argued that Constitutional processes that give the states rights in the Senate and in the electoral college should be changed to reflect one person one vote.
There was a reason why the Constitution created America as a democratic republic, not a pure democracy. It gives small states like South Carolina powers in the Senate and electoral college that prevent them from being dominated by states with much larger populations like California and New York. The states continue to play a major role in American politics.
The amendment process in Article 5 of the Constitution is far more complex than that for legislation in Congress. As the foundation of American democracy, the Constitution should be difficult to change; but with enough public support and less partisan polarization, there can be amendments on critical issues like the Second Amendment and abortion.
The Constitution is the ultimate authority on legal and political issues in America. The main difference in the Constitution and the Bible is that the Constitution is interpreted by the Supreme Court and can be amended by the American people, while the Bible is inviolate and beyond any change. The popular sovereignty of the Constitution makes Americans masters of their own political destiny. That means that Americans cannot blame God for their politics.
In her article on How to Stave Off Constitutional Extinction, Jill Lapore asserted that “when Congress sent the Equal Rights to the states for ratification in 1972, its derailment rendered the Constitution effectively unamendable. …While Americans can no longer, for all practical purposes, revise the Constitution, they can still change it, as long as they can convince five Supreme Court justices to read it differently. But how well has that worked out? That’s what happened, beginning in the early 1970s, with abortion and guns, the north and south poles of America’s life-or-death politics, in which either abortion is freedom and guns are murder or guns are freedom and abortion is murder. Chances are that if you like the current court, you like this method of constitutional change and if you don’t like the current court, you don’t like this method. But either way, it’s not a great boon to democracy.” See https://www.nytimes.com/2023/07/01/opinion/constitutional-amendments-american-history.html.
Lapore ignores the fact that all 26 Constitutional amendments through 1971 depended upon broad public support that the Equal Rights Amendment did not have. As a nation polarized by partisan politics, achieving the consensus needed for Constitutional amendments will be increasingly difficult, but the problem is not with the amendment process but with America’s polarized democracy. The extinction of the Constitution is not an existential political issue in America; but our democracy will fail if we don’t find ways to achieve consensus on major issues.
Recent SCOTUS decisions on affirmative action, gay rights, and the forgiveness of student debt reveal a Supreme Court that is not as polarized as many have feared. Along with conservative triumphs, there are signs of new caution at the Supreme Court. “The court remains deeply conservative but is more in tune with the fitfully incremental approach of Chief Justice John G. Roberts Jr., who is attentive to his court’s legitimacy, than with the take-no-prisoners approach of Justice Clarence Thomas. The chief justice’s strategy — and votes — produced a fair number of liberal victories.” ...Looking across the entire docket the data show a shift from the most conservative and aggressive court in modern history to one that has moderated,” said Lee Epstein, a law professor and political scientist at the University of Southern California. “Perhaps the justices — especially Roberts, Barrett and Kavanaugh — have faced up to the public’s waning confidence and decided to self-adjust. ” …Chief Justice Roberts and Justice Kavanaugh, who represent the court’s ideological middle, tended to agree more with the liberal justices and less with their fellow conservatives than they did last term. Note: Justice Jackson agreed with Justice Kavanaugh 62 percent of the time, and with Justice Roberts 59 percent of the time. Roman Martinez, a Supreme Court specialist with Latham & Watkins, said that “members of the conservative bloc — and especially the chief justice and Justice Kavanaugh — found common cause with the more liberal justices on a surprising range of issues.” For more specifics on how the Justices voted, See https://www.nytimes.com/2023/07/01/us/supreme-court-liberal-conservative.html.