The Left Wakes Up to Constitutional Law

How nice to see the New York Times ruminating over the Constitution. What a change. Only 12 years ago, Republican efforts to open the 112th Congress with a reading of the Constitution were met with what the Editor of this paper termed “hoots of derision” and “outrage” punctuated with “keening.” The Times itself labeled the exercise “a ghastly waste of time.” Little more than a decade on, a new interest in the national parchment has caught on amongst Democrats. From the pages of the Gray Lady to the halls of Congress to grassroots legal organizations, those on the left are belatedly realizing that in ceding the founding text to Republicans, they have built their top policy priorities on legal quicksand. Holdings of the Supreme Court, which this year delivered conservative wins on guns, abortion, criminal procedure, religious liberty, and regulatory delegation are being met by the Times with more daring coverage of the Constitution. One columnist, Jamelle Bouie, has been plumping for “transforming the structure of American government” via Constitutional reform.In a column Sunday, Mr. Bouie proposed stripping the Senate “of its power to introduce or veto legislation” to make it “into something like the British House of Lords, which has limited power to veto legislation or make policy.” Yet the Constitution ordains that “No Title of Nobility shall be granted by the United States.” It was a veritable allergy of the Founders.Mr. Bouie aspires to “move the locus of policymaking back to the House of Representatives,” which he would expand it to “at least 600 members.” To end senatorial hegemony, Mr. Bouie would side with conservatives, who’ve long favored repealing the 17th Amendment, which ordained the popular election of Senators rather than having them chosen by state legislatures.Left unmentioned by Mr. Bouie in his argument for putting the Senate out to pasture is the sacrosanct status the Constitution hands that body. The parchment specifies in Article V that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” the sole remaining part of the Constitution that it is unconstitutional to amend. While ending the direct election of Senators would not by itself contravene this order, Mr. Bouie clearly envisions a different role for the upper chamber. The columnist has taken the same approach to the Supreme Court, reminding his readers in a column last month that “The power to check the Supreme Court is there, in the Constitution.”That power adheres in Congress recalling its power to, in Mr. Bouie’s words, “discipline a rogue Supreme Court.” It can impeach justices, scale up and strip down the court, circumscribe its jurisdiction, and alter its procedures for overturning precedent. He urges Congress to “seize” the “power to check the Supreme Court” articulated in Article III, Section 2. That campaign has already begun, in the form of a letter written by congresswoman Alexandria Ocasio-Cortez to Speaker Pelosi and her junior partner, Senator Schumer. Ms. Ocasio-Cortez urged a legislative push to restrict “the Supreme Court’s appellate jurisdiction in the areas of abortion, marriage equality, non-procreative intimacy, and contraception.”Ms. Ocasio-Cortez’s letter was issued two weeks before Mr. Bouie’s column, suggesting that a circuit of constitutional interpretation might be clicking between pundits and politicians. Just last week, congressman Hank Johnson, a Georgia Democrat, publicly pushed the 2021 Judiciary Act, which would add four seats to the court as medicine for “a Supreme Court at crisis with itself and with our democracy.”Mr. Bouie asserts that The Constitution contains several “idle provisions” — “words, phrases and clauses that have little to no bearing on our constitutional order as it currently exists.” Free Speech for People, a legal advocacy group allied with the left, is seeking to put one of those “idle provisions” to work, namely Section 3 of the 14th Amendment. That clause bars from office those who “engage in insurrection,” and Free Speech for People has is attempting to use it to cudgel off the ballot everyone from Representative Madison Cawthorn to President Trump. In respect of the latter, the group has mailed a letter to all 50 secretaries of state urging them to commit to barring Mr. Trump from the ballot.The provision has been idling since 1919, when it was deployed to bar the seating of a socialist Congressman, Victor Berger, who was accused of giving aid and comfort to Germany during the First World War. That maneuver was eventually reversed by the Supreme Court, which over-ruled the famed trial judge Kenesaw Mountain Landis, who was promoted to Commissioner of Baseball.Legal revolutions can be long gestating — and might well come into view only as they near completion. It took more than half a century — 58 years — to undo Plessy v. Ferguson. The toppling of Roe v. Wade took nearly a half century. That doesn’t mean that the awakening of the Left to the power of the Constitution will come to naught.

The Left Wakes Up to Constitutional Law

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