My Turn: Can we fix our undemocratic Constitution?

The catastrophic 2021-22 Supreme Court term has deeply shaken progressives’ faith in our Constitution. The court’s repudiation of abortion rights, elimination of the EPA’s authority to address climate change and elevation of gun rights beyond all others have imperiled the Preamble’s promise to secure “the blessings of liberty for ourselves and our posterity.”

The deep dysfunction that enabled these decisions stems from three impediments to democracy embedded in the Constitution since 1787: the U.S. Senate, the Electoral College, and the state legislatures’ control over voting rights. All three were deliberately designed by the framers to blunt threats to the interests of men of property, including slaveholders, from democracy.

The Trump-appointed justices whose votes were decisive last term owe their seats to the Republicans’ control of the Senate despite coming from states comprising only about 40% of the nation’s population. The Senate represents states, not people. Majority Leader McConnell exploited this undemocratic advantage first to thwart Obama’s nomination of Merrick Garland, allowing Trump to install Neil Gorsuch. McConnell then forced the confirmation of Brett Kavanaugh, despite credible evidence of Kavanaugh’s perjury and a shocking display of his disdain for judicial temperament. Finally, with brazen hypocrisy, McConnell rushed Amy Coney Barrett onto the court after Justice Ginsburg’s death just before the 2020 election.

Including Gorsuch, Kavanaugh and Barrett, five of the six justices responsible for the Supreme Court’s reactionary turn were also appointed by men who lost the popular vote for president. Both George W. Bush and Donald Trump took office only because of the Constitution’s anti-democratic Electoral College. Trump’s attempt to overthrow his 2020 defeat exposed a further threat from the Electoral College to the people’s ability to elect our presidents. If no candidate achieves an uncontested majority of Electors, Article II and the 12th Amendment give the House of Representatives power to choose the president. Significantly, the House’s vote “shall be taken by states, the representation from each state having one vote.” Thus, in deciding a contested presidential election, the House of Representatives functions like the undemocratic Senate, representing the states and not the people. Had this process been triggered after January 6, 2021, Donald Trump would now likely be enjoying his second term.

Finally, our undemocratic Constitution nowhere guarantees our right to vote at all. The power to set the rules for voting for federal officers — senators, representatives and presidents alike — is instead assigned to the state legislatures, subject (in the case of Senators and Representatives) to oversight only by a chronically deadlocked Congress. State legislatures have historically weaponized this power against the voting rights of racial minorities, poor people and city dwellers. Now, Republican opponents of democracy are using the self-gerrymandered state legislatures they control to erect purposeless obstacles to the entire electorate’s ability to decide who will govern in our name. Next year, the Supreme Court will decide whether there are any limits to the ability of state legislatures to restrict, or even completely usurp, the people’s voting rights. If there are not, the 2024 presidential election may be decided by electors selected in some states by their legislatures, rather than by their voters.

The Senate, the Electoral College and the state legislatures’ stranglehold on voting rights gave us the current Supreme Court. The latter two now threaten the integrity of our national elections as well. But the Constitution also offers a way to take back our democratic rights. Article V requires Congress to call a national constitutional convention if two-thirds of the states’ legislatures request one. Congress may provide that proposed amendments then be presented to state conventions, with approval by three-quarters required for ratification A new constitutional convention has always seemed terrifying. Far right ideologues could hijack it to eliminate the parts of the Constitution they despise. Some state legislatures might hope that asking for a convention will help them undermine voting rights.

Still, by laying bare our undemocratic constitutional structure, the Supreme Court may have changed the balance of risks. The prospects for progressive change under our Constitution are worse now than at any time since Franklin Roosevelt’s first term. A national constitutional convention, followed by 50 more in the states, would also require our apparently polarized citizens to talk about how we should govern ourselves. Perhaps we shouldn’t be afraid of what this kind of collective deliberation could yield. As the people of Kansas showed on Aug. 2, many voters in red states, too, might prefer to live in a constitutional democracy grounded in respect for liberty and equality.

Bruce Miller is professor emeritus of the Western New England University School of Law.