The U.S. Supreme Court is illegitimate. It has always been illegitimate. The principles of restraint that previously lent the court an air of legitimacy have been casually discarded in the name of unleashing police to abuse Black and Brown people, restricting tribal sovereignty, subjugating women, establishing Christianity as a public religion, and ensuring that megacorporations can keep their shareholders happy no matter how much the planet suffers. The court’s legitimacy has rightly weathered unrelenting attacks this past month, but the bulk of those attacks seem to be based on the idea that this illegitimacy is a recent development. It’s not.
For most of the court’s history, the majority of sitting justices have been White men. The court was established at a 1787 Constitutional Convention of entirely White men, sent by and for the White men of their states, which were themselves established exclusively through the decisions of White men. The court granted itself the power of judicial review while composed exclusively of White men.
White men aren’t universally awful, but a court they established without input from anyone else is fundamentally anti-democratic. If political power derives from the people — and our state constitutions generally agree it does — there’s no reasonable way to establish legitimate institutions when only representatives of a minority of the population participate. The Supreme Court is illegitimate because the U.S. Constitution is illegitimate. And our nation was founded on the notion that the people have the right to abolish any system that’s harmful to life, liberty, and the pursuit of happiness.
The Constitution is more dedicated to protecting states than people. And what’s worse, basic rights can disappear when you cross those arbitrary lines — exactly the problem the court is set to exacerbate.
There’s still some good in it.
If courts were to examine that the Constitution has three distinct clauses to protect unenumerated rights — a huge range of rights, such as privacy, travel, and voting, that we frequently exercise without necessarily even thinking of them as rights — we might gain real protections for them. If the Reconstruction Amendments (13th, 14th, and 15th) were actually enforced with their intended abolitionist meanings rather than through a Lost Cause-revisionist lens, they’d allow our government to really help its people. But even the U.S. Congress that passed the 13th and 14th Amendments was composed entirely of White men, and the state legislatures that ratified them were composed almost entirely of White men (and were exclusively men).
While those were some of the best 19th century White men we had in this country, they still had to take positions of compromise to get their amendments passed. Those compromises left openings for bad-faith conservative arguments to dominate 14th Amendment jurisprudence, which basically covers the entire constitutional basis for modern civil rights.
But stronger rights protections wouldn’t solve the Constitution’s legitimacy problem, nor would it redress the fundamental unfairnesses of how it allocates political power. Apportioning representation based on arbitrary lines drawn centuries ago is such an obvious problem that even the British managed to solve it more than a hundred years ago! But then, that’s one of the hardest parts of the Constitution to change. The Constitution is more dedicated to protecting states than people. And what’s worse, basic rights can disappear when you cross those arbitrary lines — exactly the problem the court is set to exacerbate. It would be easier to take the best bits of the Constitution and put them into a new one than to fix the current one.
The good we could do in a new constitution is immense. People’s votes could be given the same weight regardless of where they lived through a voting system such as proportional representation. We could do away with federalism, the system of concurrent government by both a state and national government, reserving exclusive power over certain issues to each. The states’ sovereignty isn’t any more legitimate than the Constitution, and they make very little sense as a way of governing a highly mobile population.
We could abolish the Senate and establish a unicameral legislature focused on governing in line with the will of the people. We could limit the judiciary’s power of review with specific guidelines. Rather than letting the judiciary set the weight a particular right is granted in analyzing legislation, we could specify that rights are to be restricted only in a manner consistent with a free and democratic society. We could actually set out to protect human rights in a modern sense.
We could end the unitary executive and, with it, the imperial presidency, which historian and author Arthur M. Schlesinger Jr. described as the creep of executive authority beyond the control of Congress or the Constitution. Our expensive and shameful foreign military endeavors would be limited to our treaty obligations and those approved by the legislature.
What we could accomplish through drafting a new constitution is limited largely by our imaginations and the hard work of compromise. We could build an abolition democracy.
If the new constitution is to be legitimate, though, it must be drafted and adopted through democratic processes. The delegates to such a convention must include as large a cross-section of American society as possible, particularly ensuring the interests of marginalized people are represented. Americans of nearly every substantial population — across race, ethnicity, religion, gender, sexuality, ability, and class — must be included.
Ideally, the delegates would be chosen by the groups whose interests they represent and given voting power in proportion to those populations. The distribution of such representatives must be intersectional, so marginalized groups are not represented disproportionately by their least marginalized members. To build a representative democracy, it must be designed through democratic processes by a truly representative body.
We must not, in this process, fear an excess of democracy.
Ancient democracies, such as Athens, Megara, and Rhodes, audited the selection of representatives to ensure balance among competing interests. Unlike them, however, and unlike the American founders, we must ensure this new founding does not privilege the wealthy and powerful through anti-democratic processes and institutions. The lines of balance must not be drawn along the points of conflict but rather in line with the population.
This country has fewer than a thousand billionaires; they should have less clout in this new founding than, say, Lakota, atheists, Afghan refugees, or nonbinary people. And, more critically, substantially less than the working class.
As a practical matter, it’s unwieldy to split communities too finely, and some similar interests would need to be grouped to keep the convention workable at a few thousand delegates. But groups composed of millions of Americans should have proportionate strength in negotiating and drafting a new constitution. By beginning with a document developed by a diverse and inclusive group, we can establish a legitimate government of a pluralistic democracy.
Brandon Hasbrouck is a Washington and Lee University School of Law assistant professor who researches and teaches in the areas of criminal law, criminal procedure, movement law, and abolition.