What if?

Liberating Our Pro-Democracy Constitution

Brainstorming:

Given what’s happening at both the state and federal government level in our country, it’s a great time to brainstorm what an ideal, pro-democracy Constitution would look like:

1. Wouldn’t it me amazing if we had a Constitution that guaranteed that every state of the Union met the conditions of a functioning democracy, where the government and its leaders adhered to both majority will and the rule of law, and respected court orders and the votes of their own citizens? And that any mechanisms that thwarted this from happening (say, intense partisan gerrymandering) were struck down for being in violation of that Constitution?

2. Wouldn’t it be fantastic if, at a time where voters are being purged and suppressed in a variety of ways in different states, our Constitution made clear that all citizens had the same opportunity to vote as all others, and no state could undermine certain citizens’ opportunity to vote—or make it harder for some to vote than others?

3. And imagine if the Constitution granted the federal government broad power to pass laws to ensure that all states abide by that Constitutional requirement? So that the federal government could ensure that states didn't abuse state-level power in a way that undermined American citizens’ fundamental rights, and be treated equally.

4. And, I know this is a wild one—but what if the Constitution also made clear that anyone whose attitude and inclination are so hostile to democracy that they orchestrated a plot to undo the very democracy they had sworn to serve, is disqualified from serving in office in the future (leaving the exercise of power to those who actually believe in a representative democracy and the rule of law)?

5. Similarly, wouldn’t it be grand if we had a Constitution that kept the president of the United States from receiving payments from foreign governments that might corrupt his decisions about US policy?

Add such things up, and boy would America’s democracy stand on firmer ground than it does today. Think about it:

• State laws could not be passed that made it harder for some to vote than others, and Congress had the power to keep that from happening;

• No citizen would be stuck living in a state whose government defies the majority will of that state’s residents, which would place mechanisms such as intense gerrymandering under strict scrutiny for being in violation of the Constitution;

• Federal elections would therefore reflect elections where voters across all states enjoyed the same opportunity to cast votes and be represented fairly;

• And individuals who’ve proven, through past actions, that they don’t respect or abide by the Constitution and the rule of law would not be given the power to act out those lawless, anti-democratic and criminal proclivities;

• And we wouldn’t have to worry that presidents may be under the improper influence of foreign, deep-pocketed powers tying to impact American policy or personnel.

Imagine all that! A country with such democracy safeguards anchored into its foundational document would be on such firmer ground than we find ourselves today.

How great would that be?

The Actual Text

But here’s the amazing part about the United States. And most reading this will know this, but we collectively allow ourselves to forget it.

Every one of the principles above is, in fact, spelled out in our Constitution. Explicitly.

There’s the Guarantee Clause of the Constitution (Art IV, Sec., 4): “The United States shall guarantee to every state in this union a republican form of government” — which more or less means what I wrote above about states. “Shall guarantee” is as strong as a legal command gets.

There’s the XIV Amendment, which among other things, commits that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” That’s pretty sweeping, right? Definitive too!

There’s Section 5 of the XIV Amendment, which establishes that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Again, sweeping.

And then, of course, there’s Section 3 of the Amendment, which could not be more explicit: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” Those who’d just been through a Civil War weren't mincing words when they wrote this clause, were they? FA and FO. Insurrectionists need not apply!

And there’s the Emoluments Clause (Art. I, Section 9), which makes clear that “[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.””

So, it turns out, we do have bedrock protections of democracy in our Constitution. Our forbears did share our present-day concerns about democracy and corruption, and took great care to give the federal government and courts the power to do something about them. Using plain words that any lay American would understand.

Despite all that, somehow these words don’t seem to exist at all.

Why not?

An Anti-Democracy Court…for Most of Our History

One simple reason: over the years, starting centuries ago and continuing into this year, and despite the narrative that the US Supreme Court faithfully abides by the text of the Constitution, the Supreme Court has consistently chosen not to give full (or any) meaning or force to these crystal clear textual commitments to democracy and representative government.

There has indeed been judicial “activism” running rampant, undermining the plain text of the Constitution—but not in the way the right has tossed that accusation around. The “activism” has been the consistent erosion of the clear meaning and implications of the Constitution’s most robust democracy protections.

Take the explicit guarantee of a Republican Form of government—potentially a powerful tool to protect majority will and the rule of law in states? The Court refused to act upon that commitment amid a bizarre Rhode Island dispute from the mid-1800s, and has never strayed from that position.

The protection of the “privileges and immunities” of federal citizensip? Well there, a Jim Crow court ruled that despite the sweeping language in the Amendment, that such “privileges and immunities” are limited to a narrow set of federal rights—such as the right to hold federal office; transact business with the federal government; access seaports; benefit from protection when on the high seas; and utilize navigable waters. Apparently none of the high-minded motivations of the post-Civil War “radical” Congress made the cut. Instead, the Court concluded, they did all that work to ensure we all get to travel navigable seas.

The broad power of Congress to enforce the XIV Amendment was of course gutted by Shelby County, with Justice Scalia going so far as to suggest that the Congress’ bipartisan and near unanimous support (George W. Bush included) for the most recent extension of the Voting Rights Act raised his suspicion that something inappropriate was afoot, forcing the Court to step in. Later cases have doubled down.

And of course, earlier this year, the Supreme Court eviscerated the clear command of the Disqualification Clause by saying Congress must pass legislation to trigger disqualification, a conclusion which flies directly in the face of the Clause itself, which states “a vote of two-thirds of each House” is needed to “remove such disability [the disqualification].” As in, the insurrectionist/official was already disqualified by another entity and Congress’s only role is to undo the disqualification if two-thirds of its members so choose.

And a couple years ago, the Court dismissed several Emoluments Cases filed against Trump—when it’s plain as day that he, his family and his private businesses have been enriched by foreign payments year in and year out.

The point is: over the centuries through today, the Court has systematically gutted some of the most robust language in the Constitution that—if given its full meaning and force—would actually provide much of the protection of democracy that is so wanting today.

And all this time, we just keep accepting it.

Why?

For the most part, it’s been a stubborn adherence to long ago precedent, good or bad (and often those cases have been pilloried the moments they were decided).

First year law students all learn of that 5-4 Jim Crow decision gutting “privileges and immunities,” and that our courts stick to it through thick and thin, even though the purpose of the decision was clearly meant to stifle the newly gained rights of freed slaves. One rogue case killed the phrase, so it must be treated as gone forever. Y’know, precedent.

Just as the antiquated decision to avoid living up to the Guarantee Clause is treated as unquestioned and bedrock American law—followed so religiously that most Americans don’t know there’s a Guarantee Clause in the first place, or that if the words were given their full and plain meaning, what our Founding Fathers guaranteed then would be the perfect tool to end gerrymandering by any party now.

Our judicial system has convinced itself and all Americans that it would be unthinkable to second-guess questionable precedents set amid disturbing and dated (even bizarre) circumstances.

Ironically, one benefit of the recent Roberts’ Court’s willingness to overturn bedrock precedent such as Roe, Chevron, and XIV Amendment/Voting Rights Act precedents is that it begs the question: if they are so comfortable overturning precedent, why are we still allowing a Jim Crow court to render the term “privileges and immunities” meaningless today? Why are we allowing an 1849 case to keep us from using the Guarantee Clause from ending gerrymandering today?

Liberating our Constitution

The truth is, our democracy is under fierce attack.

And there are robust democracy protections in our Constitution as it’s currently written. Every American can read the text and see those protections today.

But we’ve allowed a Supreme Court to systematically dilute or destroy those most powerful protections to the point that we hardly acknowledge they even exist.

If Roe was “super-precedent” that they were comfortable gutting, then when there is ever the opportunity to breathe life back into those pro-democracy clauses, and liberate them from Court decisions that intentionally smothered them, let’s take it.

After all, the words are all right there—plain as day.

A true textualist would take up that opportunity. As would those who value our democracy.

Day 5, December 5, 2024 — Putin’s Dream Pick

Amid the chaos surrounding Trump’s parade of controversial nominees, one effect of his “flood the zone” strategy has been the scant attention being paid to his most dangerous pick when it comes to our national security. And the pick we can safely say Russian President Vladimir Putin would most value":

Tulsi Gabbard as Director of National Intelligence.

Amid the Hegseth and Gaetz and RFK firestorms, Gabbard has gotten far less attention. Even though, again, a tainted selection as DNI would be a catastrophe for our nation’s and other nations’ security, as well as our alliances and standing in the world.

Yesterday, a sizable group of national security experts wrote a letter warning of this risk: among other concerns, they wrote: “Her sympathy for dictators like Vladimir Putin and Assad raises questions about her judgment and fitness.”