When the Constitution’s the Problem, Not the Answer

By DON ROLLINS

Of all the many illicit coups history will lay at Senate Majority Leader Mitch McConnell’s doorstep, none will rival the derailment of one Supreme Court nomination process (Merrick Garland) and fast-tracking of another (Amy Coney Barrett). Indeed, no Senate majority leader since Lyndon Johnson has wielded such influence; and none has been as successful in determining the court’s composition as the newly re-elected McConnell.

If McConnell paved the way for Barrett’s done-deal Senate confirmation, she did nothing to rain on the GOP’s charade. Invoking the standard answers to the standard questions regarding judicial bias, Coney Barrett for all intents and purposes appeared a neutral, maybe even deserving heir to Justice Ginsburg’s seat — quite a pivot from her consistent, on-the-record disdain for cornerstone court decisions on health care, gun safety, equal marriage and immigration.

Barrett, Trump’s third appointment in three-plus years, will undoubtedly reinforce the court’s conservative two-thirds majority and accelerate the expected assault on the Affordable Care Act. Also in the wind will be gun safety, equal marriage and that most targeted of right-wing vitriol, reproductive justice.

Given Barrett’s true past, her presence all but guarantees the court will hear any of the myriad reproductive justice cases currently before Federal Circuit and Appeals courts. And given the antiquated, undemocratic system that concentrates near-final authority with nine politically compromised supremes, Roe’s long term future is anything but safe.

Chilling as this stretch of Republican constitutional highjinx has proven to be, the congressional Democrats’ ill-fated responses signaled two further troubling realities: the party’s ongoing problems in convincing America the constitution does not belong solely to the GOP; and the understandable hesitance to name the constitution, in its current form, as a destabilizing factor.

It’s not that Senate Dems haven’t been invoking the constitution well enough or often enough, rather it’s their stubborn belief a sizeable number of American electorate still care about the details as much as they. So while the Democrats have been citing chapter and verse to defend their positions, Trump and his enablers have been polishing their image as loyal defenders of all things constitutional.

As to the simple truth that the constitution’s increasingly irrelevant, no mainstream Democratic leader is likely to take the point on such a caustic issue, but perhaps they should. The document in present form is woefully inept in the face of today’s world, starting with a rival party willing to trash whole articles, sections and amendments for gain. A reboot is in order.

What sounds like a capricious call for change turns out to be nothing new: in December 1787, barely three months after the first constitutional convention adjourned, Virginia Gov. Edmund Randolph called for a second gathering to alter parts of the seminal version. There have since been multiple efforts to do what Randolph could not, most of them undercut by constitutional purists.

When viewed from a rational, unsentimental point of view, there is merit in Randolph’s position. Trump has spent his entire presidency taking the nation to the brink of constitutional crises; in effect reshaping the constitution without the vexing details of executive restraint. If nothing else he has shone a light on what is and what used to be constitutional, unwittingly creating space for liberal discourse.

Yet converts to the reformist crowd should note the arguments against a second constitutional convention are substantial. Most persuasive is the opportunity a convention would provide congressional conservatives to amend the constitution to serve their agendas. (Article 5 requires a two-thirds majority of states (33) to begin the process, which means the real likelihood of a red state majority.) In that event, corporate interests — even foreign nations —could buy their way into the process. Without a tight, bipartisan process, the result could prove disastrous for liberals and their principles.

On the other hand there are models aplenty elsewhere, including Germany and France, where both constitutions are considered provisional. To invoke an oft-used phrase, they are living documents, designed to change with the times.

But as Eric Posner cited in a 2014 online article from Slate, America still embraces the narrative of constitutional sanctity and originalism despite time: “… the Framers didn’t foresee that as the country became more populous and diverse, it would become harder for people to reach the near-consensus required for change. The Senate began with 20 members; now it has 100. The House increased from 59 to 435. And the US population has increased from four million to more than 300 million.”

The lure of a constitutional do-over is strong. There’s nothing sacrosanct about tying up a government to the point of chronic paralysis, nothing rational about arming civilians with military grade weapons and ammunition, nothing fair about excluding naturalized citizens from becoming president.

Yet even if the gains outweigh the risks, this is no time for something so fraught with danger as a second constitutional convention. We’re still reeling from a killer virus and a fragmented society whose present and future are uncertain at best.

But meantime progressives should reconsider attempts to out-constitution conservatives with flawed logic around a flawed document. Fewer and fewer folks are listening. Our side may never find a way to bring cross-and-flag conservatives to a fair and focused discussion about changing the constitution, but at least we can stop pretending it’s not part of the problem.

Don Rollins is a Unitarian Universalist minister living in Hendersonville, N.C. Email donaldlrollins@gmail.com.

From The Progressive Populist, December 1, 2020

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