Closing Argument

TO BE SPRY AGAIN

Long before June 24—the day Dobbs jolted the legal system—the Constitution and the Supreme Court were both receiving much attention.

The Summer 2021 issue of the Democracy: A Journal of Ideas included a draft of “A New Constitution for the United States”; on November 7, 2021, The New York Times published a special section titled “Snap Out of It, America,” setting forth seven ideas for a 28th Amendment to the Constitution; and in December, the Presidential Commission on the Supreme Court of the United States issued its final report analyzing various proposals to reform the High Court.

Locally, the 2022 Law Day theme was “Toward a More Perfect Union— The Constitution in Times of Change,” and Berks middle-school students were asked to propose amendments to the Constitution.

Why all this attention? According to the Times: “America is not young anymore. Whereas it was once spry and excitable, it is now creaky and hidebound. The country that passed Prohibition and created Social Security now spends decades dithering over how large a role the government should play in health care.”

Sanford Levinson, a law and government professor at the University of Texas, led the Democracy Journal effort. In his introduction, Levinson writes, “It has become almost a given in much public discussion and punditry that the American political system is in trouble.” He believes there should be a “public discussion of the degree to which the United States Constitution might be the problem—at least a partial explanation for our many discontents—and not the solution to them.” Levinson hopes the project will lead to “a public discussion that is so much needed.” Thus, this column. Some of the “topline changes” proposed in the Journal’s New Constitution are: opening the Constitution with a more enumerated Bill of Rights; limiting the power of the Senate to delay legislation passed by the House, not killing it (similar to England’s House of Lords); four-year terms for House members; eliminating the Electoral College; limiting the Justices’ membership to an even number, at least eight; and making the Constitution easier to amend.

The Times section included these amendment proposals received from legal writers and scholars: all workers have the right to form and join labor unions; prohibiting involuntary servitude as punishment for crime; international law shall be part of American law; and tweaking the Fourth Amendment to include a specific right to privacy and applying it to one’s data and metadata.

Both projects propose limiting a Justice’s term to a set number of years and requiring a supermajority before a law can be declared unconstitutional.

Participating in the BCBA’s Law Day Contest, Wilson West eighth-grader Sam Nevins submitted the first-place entry, proposing an amendment to make Election Day a national holiday. He writes that, doing so, “will make our Union more perfect because the process of voting will be more accessible to everyone.” Insightful and “excitable.”

All of these ideas are worthy of consideration, and one hopes an interesting, dynamic discussion will result. I would like to focus on the judicial review limitation. Previously, on this page, I have expressed displeasure in having a group of unelected politicians in robes making policy by finding laws passed by Congress unconstitutional.

The most recent egregious example was the 2013 decision of Shelby County v. Holder in which the Court, by a 5-4 vote, held invalid the strongest enforcement provision of the Voting Rights Act of 1965, despite Congress finding a need for it after taking testimony from 46 witnesses totaling 16,000 pages.

Levinson justifies the amendment by explaining a supermajority may still void a law that “violates the clear commands of the Constitution. Otherwise, the national legislature should generally prevail. That, after all, is what democracy generally means.”

Writing in the Times section, Pepperdine University law professor Barry P. McDonald agrees. It will allow the Court to enforce what the Constitution clearly provides while “leaving debatable issues to the democratic process.”

Recognizing the difficulty of amending the Constitution, could Congress instead legislate a supermajority voting requirement on the Court? That was a potential reform measure the Presidential Commission analyzed.

The 35-member panel of “Constitutional Law Who’s Who” discussed various arguments to support such legislative action, citing, for example, the Necessary and Proper Clause. However, they concluded “that the Court would find a congressional attempt to impose a supermajority rule…to be beyond Congress’s power.”

But the Commission does make an interesting suggestion. Since Congress has broad power to actually set the number of Justices on the Court, bench membership could be reduced to six, which was the original number in 1789 that included James Wilson, a scholarly lawyer who had practiced in Reading for a time. With six, a simple majority vote equals a two-thirds supermajority, 4 to 2.

In fact, the Democracy Journal delegation believes an even number of Justices will “force negotiation and compromise” to achieve consensus in all cases. Thus, the New Constitution proposal: “There shall be at least eight, and always an even number…”

Are you prompted to join an overdue public discussion? Email your reactions to fdonalds@outlook.com.

I look forward to receiving thoughts as spry as Sam Nevins’.

By Donald F. Smith, Jr., Esquire

Mr. Smith is Executive Director Emeritus of the Berks County Bar Association.

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