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by
Elie Mystal
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July 18 - August 6, 2022
at the Constitutional Convention in 1787.
Smaller states were worried about being controlled by larger, more populous states. The South in particular was worried about losing the privileg...
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white slavers feared “democracy” so much that they wrote it out of the Constitution.
the Senate isn’t designed to favor rural voters. It’s designed to favor white people.
Hiram Revels, Blanche K. Bruce, Edward Brooke, Carol Moseley Braun, Barack Obama, Roland W. Burris, Tim Scott, William “Mo” Cowan, Cory A. Booker, Kamala D. Harris, Raphael Warnock: that is the full and complete list of African Americans to serve in the United States Senate in the history of this country.
eleven people.
the people who agreed to structure the Senate in this patently unfair way provided that its structure was the one thing that could never be changed. Article V of the Constitution,
no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Everybody who realizes that the Electoral College is antithetical to democracy has their favorite numbers to explain why the system is trash.
Cardozo School of Law professor Kyron Huigens,
The reason the popular vote diverges from the Electoral College vote is that each voter in Wyoming has more voting power in the Senate [emphasis added]—and so in the Electoral College—than each voter in California.
I can make an argument that this kind of “vote dilution” violates the Fifteenth Amendment, or the equal protection clause of the Fourteenth Amendment,
Jesse Wegman has written the definitive book on abolishing the Electoral College. His work, Let the People Pick the President,
The solution that Wegman and many others endorse is the National Popular Vote Interstate Compact. It’s a pretty simple idea: states pass legislation promising that their electors will go to the winner of the national popular vote.
The plan has downsides.
a number of state laws about the counting of votes, certification of those votes, and awarding of Electoral College voters could well flummox a compact agreed to by a thin majority of states.
What’s broken here is the Constitution. It needs to be fixed, not jerry-rigged together to make it through another election.
The filibuster is just the senators themselves getting together and thinking, “How can we make things worse?”
The final two amendments to the Bill of Rights, the Ninth and Tenth Amendments, are hilarious. Every time I read them, I imagine James Madison dressed up like Kevin Bacon at the end of Animal House, screaming “All is well!” while an actual riot breaks out around him.
Madison and the other authors of The Federalist Papers didn’t think amendments to their new Constitution were necessary.
They worried that if they specified a few rights, some fools in the future would conclude that their list of rights were the on...
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They had a good point.
Madison gave in
and drafted the Bill of Rights.
But, he tried to give himself—and, you know, all of us living in the future—a couple of outs. The Ninth Amendment is one sentence: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Tenth Amendment is also just one sentence: The powers not delegated to the United States by the Constitutio...
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A version of what Madison might have wanted is explored in Columbia law professor Jamal Greene’s book How Rights Went Wrong.
Instead of applying individual rights as legal absolutes, we should instead seek to balance competing legitimate state interests with an eye toward justice and fairness instead of rights and prohibitions.
Antonin Scalia said this about the Ninth Amendment:
if my life depended on it, I couldn’t tell you what the Ninth Amendment was.
the Ninth Amendment blows their whole little project apart.
Madison put the Ninth Amendment in to counteract what he knew small-minded people would do to the rest of the document, and so small-minded conservatives have to pretend it’s not even there in order to achieve their goals of retarding progress.
We have more rights than those that are explicitly conferred in the Constitution. The Constitution says so!
The Tenth Amendment is a reaffirmation of limited government, state’s rights, and federalism.
Even though most rights have now been “incorporated” against the states, our federalist system still locates most power to do most things with state governments, not the federal government.
I am constantly aware that federalism usually means Black people living in red states get screwed.
I get real federalist, real quick, when national Republicans try to apply their “Christianity, but just the mean bits” theory of law to my blue state.
Conservatives are happy to ignore the Tenth Amendment when they want to obliterate state laws that serve goals they don’t think are important.
There’s no objective reason that the Ninth Amendment should be applied to the states any less robustly than the Second Amendment.
The structure of our Constitution pits the Ninth and Tenth Amendments against each other,
The Ninth contemplates robust protection of individual rights that defends minority interests against the excesses of the majority. The Tenth contemplates a society where the states are free to do what they want against minority populations in their state, but are themselves protected from the majority views of the nation.
Conservatives almost always resolve this conflict for the benefit of white people.
Conservatives could not win these constitutional arguments if they put it up for a vote.
And so, conservatives do not put it up for a vote.
They use the judiciary, the least transparent and least responsive branch of government, to push through their antebellum values,
I’m here to tell you that the Constitution is trash. Conservatives are the ones who say it always has to be.
Without commanding a single troop or passing a single bill, a conservative Supreme Court is not a check on the other branches of government, but a check on progress itself.
What can we do about that?
strip the federal courts of their power of judicial review.
the power to render acts of Congress unconstitutional was not conferred in the original Constitution or any amendment since. The Court just took tha...
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The power, enjoyed by our Supreme Court, unilaterally to revoke laws passed by the democratic branches of government, is uncommon on the global stage.
