A new constitutional law theory for a more perfect union

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Exterior of the building housing the Supreme Court of the United States of America. FB

When people regard you as the majesty of the law, perfection becomes the norm. Unfortunately, the US Supreme Court exists within a political system that is far from perfection. Every day, Justices have to convince the whole nation that they love and defend the Constitution. But in reality, their performance does not seem so; at least not often enough. The Case Against the Supreme Court by constitutional law expert professor Chemerinsky offers plenty of stories.

You need not be an originalist to believe that the Constitution cannot be amended easily. Article V of the Constitution allows amendments only in two ways. First, an amendment may be proposed by a joint resolution of Congress and must then secure a two-thirds majority vote in both chambers, or a second way, by a constitutional convention supported by two-thirds of the State legislatures. All the 27 amendments thus far have been done via the first way. But sadly, what people don’t detect is the fact that there have been numerous changes to the Constitution via a strange way which has been hiding in plain sight: decisions of the defender of the Constitution, the Supreme Court.

Whenever the nation’s highest court decides on a constitutional matter, it gives meanings to specific provisions enshrined in the Constitution. Then, by applying the adopted meanings, Justices either uphold or reject the legal norm argued before them. And there lies the truth: whenever we humans try to define something, our cognitive ability is shaped by everything around us and inside of us, including our learnings, logic, values, and history and so on. When Justices interpret the Constitution, their reasonings are shaped by these elements more than by the text itself. Actually, they cannot even limit themselves just to the literal text. It is like when a professor is marking a student’s essay, her evaluation cannot be solely based on the words and prose that the student has chosen. In all likelihood, the student has the right to expect the professor to use her greater wisdom to judge how good or how bad the essay is. This very same expectation applies to Justices when they are asked to ponder over the most likely meaning of a particular constitutional provision.

Just as the professor was not in the heart and mind of the student, none of the current Justices was in the hearts and minds of the drafters of the Constitution. But we take it as self-evident that a great professor ought to be able to discern the true value of the essay anyway, however poorly written the essay might be. Likewise, great Justices try to discharge the same task (of discerning the true meaning) but the problem is that just as they thought they have understood the intended meanings, there came new learnings, new values, et cetera. through time which made all the difference. This was evidenced by the fact that racial discrimination had been constitutional at one point (Plessy v Ferguson Supreme Court decision of 1896, “separate but equal” doctrine) until it was found to be unconstitutional at a later time (Brown v Board of Education of 1954). You may ask, Had Congress amended the Constitution to end racial discrimination? No, it had not. The ending of racial discrimination came as a result of the Justices making a correct realisation, and suddenly the Constitution seems to always have meant to ban racial discrimination.

When Justices change their opinions, the meaning of the Constitution effectively changes. Who had given the Justices the authority to change meanings of the Constitution as they shall please? Nobody. Unless we forget, the very power of interpreting (therefore effectively amending the meaning of) the Constitution is not officially granted by the sacred text. The so-called “judicial review” was born out of pure thoughts of those men forming the majority in Marbury v Madison, some two centuries ago. Nobody today would seriously blame those jurists of 1803 because the mechanism they invented has actually served the republic rather well. It would be unthinkable for the Supreme Court to pronounce in the future that legislative acts are unreviewable.

Now, judicial reviews along with many fundamental rights have been granted constitutional status over time, with some enjoying more spotlight than others. But one thing is clear, whenever the Supreme Court reverses its own decisions (precedents), it changes the significance previously given to particular constitutional provisions. By virtue of new interpretations, Justices in the majority can suddenly end a constitutional right that has existed previously. In other words, they can and actually do amend the Constitution without literally saying so. For although the specific provision itself need not change, the resulting application of it does, whereas well-wishers of Article V sit idly by. This this-is-amendment-in-all-but-name shield is perhaps the most astonishing taboo in the entire US constitutional fabric. The irony of it is that, on the one hand, if we forbad the Supreme Court from interpreting (therefore, changing, amending) the Constitution and strictly looked to Article V for hopes, certain noble hopes may not be realised. On the other hand, Congress, being a pure political institution is prone to political deals of the day, however awful these may be. Hence, among the three branches, the people have no choice but to keep wishing that the judiciary was politically neutral.

Minority arguments, not necessarily wrong, lose the day. Roe v Wade, a constitutional right winner for half a century, has now become a loser. Suddenly, a constitutional right no longer exists. The doctrine by which the Constitution has an original intent is a worthy argument precisely because it reinforces the idea that this foundational text must be a living document. For if it had an original intent, the intent must have been for it to stay alive to defend itself. By reversing Roe v Wade, Justices once again are telling the public that they—not the Constitution— are above the law, that they can establish a constitutional right and abolish it when they so choose. For a republic that has tried to become a more perfect union, such judicial behaviours are not helping. Can anyone imagine that fifty years later another professor somehow believes that the previous professor did not do a good job, so he decides to mark the essay again and changes the grade that has sat there for fifty years? Either the second professor has had a sworn bitterness against that student or he has nothing whatsoever of value to pursue. He shall be dismissed for either reason.

Let us remember that any constitutional rights which have been recognised or established are well within the meaning of the Ninth Amendment which stipulates that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Thus, the Supreme Court has a duty to construe the Constitution so as to discern and establish those not-yet enumerated constitutional rights, and not to abolish those that already exist. The Framers understood that a more perfect union would require time and therefore accepted the truth that no exhaustive list would ever be enough. Roe v Wade as a constitutional right has clearly been “retained” by the American people for over fifty years and therefore cannot be denied or disparaged through construction. By abolishing a well retained constitutional right, the current Supreme Court majority have either misunderstood the Constitution or, worse, ignored it altogether.

So, how to heal this malady? Is there a new constitutional law conceptualisation to the rescue? The only way to uphold the US common law tradition of predictability is, I dare say, by theorising that a constitutional right, once recognised and retained, may not be abolished at all except through the procedure under Article V. There is no better theory. Only Article V can appropriately bring issues of grand importance back to the sovereign American people to evaluate what they would like to do with their retained constitutional rights as they continue to appreciate the true benefits of the founding document on their journey closer to a more perfect union.

Virak Prum teaches law at CamEd Business School. The opinions expressed are solely his own.