With the reversal of Roe v. Wade, more than a few Medium contributors have been deriding the Supreme Court as an illegitimate institution. Their reasoning is as follows:
1. Supreme Court Justices are not elected by popular vote. The sitting president nominates his preference; the Senate votes on that preference. That is the constitution.
2. Mr. Trump won his 2016 presidency by the rules of the electoral college. This is how the U.S. elects the president. That is the constitution.
3. Mr. Trump was the president, inept or not. He had the right to nominate whoever he wanted. That is the constitution.
4. Mr. Trump had the fortune of having to nominate three SC justices in his four-year presidency. While this frequency is unprecedented in recent American history, this situation is still within the constitution.
5. The proper hearings were held. Mr. Kavanagh was especially scrutinized, but in the end, the Senate votes went his way. That is the constitution.
6. Mr. Trump and his base had a lock on Republican Senators such that they dared not vote against his wishes. This “politics” was within the rules of the constitution.
All six of these events were necessary to bring about the reversal of Roe v. Wade. Everything I saw was within the constitution.
Just because we do not like a decision from this democratic institution does not give us the right to declare the institution and its decision — or even the constitution — as democratically illegitimate. Continuing with this “illegitimacy” argument only plays into the hands of powers who want to turn the USA into an oligarchy: “They don’t like the current rules, so we might as well make our own rules.”
And don’t blame the red states for giving an unfair edge to the Republican Party in the elections. The states have the constitutional right to set their own election rules. If Republicans won the last state election and want these rules to give them a little edge and can push these rules through the legislatures and courts, that is their constitutional right. Undemocratic? Unfair? Probably. But that is the constitution.
Fixing this mess within the constitution
I see the constitution providing two mechanisms to reinstate Roe v. Wade (or maybe something better).
First, 80m Americans did not vote in 2020. That is enough of a voter block to really turn the tables on the Republican Party in November. If 40m of them can be convinced to vote against the Republican Party, all the gerrymandering, voter suppression, and claims of voter fraud won’t have much effect. But if these voters continue to not vote, then should the constitution really be blamed?
Second, the U.S. constitution has an amazing amending formula. Three-quarters of the state legislatures can effect an amendment on the rest of the nation. The powerbrokers in Washington cannot hinder this process if the states have some degree of unity. If the states or constitutional advocates cannot find this unity, then the constitution should not be changed, leaving the current rules as they are.
Going back to the beginning
We should realize that when the constitution was first applied to this new country, it gave only 5% of the population the right to vote. I can see the U.S.A. legally going back to this condition, using the very same constitution to take it there and keep that same constitution intact. In other words, a one-party state is within the constitution.
If the constitution is truly broken — and the nonvoters do not care and the advocates for democratic change cannot find their unity — then maybe it’s time to move the U.S.A. from its horse-and-carriage democracy and into a 21st-century democracy.
But we shouldn’t expect the constitution to make that move for us. We need a totally new way.
Published on Medium 2022
