237 years after the United States
Constitution was initially signed, students gathered in the Chapel to listen to Professor Robert Tsai give a talk on the current state of the Constitution. In his talk on Tues, Tsai discussed the issue of Constitutional adaptability versus Constitutional originalism, and focused specifically on amendment and Supreme Court reform.
Leaning into Thomas Jefferson’s quote “the earth belongs in usufruct to the living,” Tsai argued that the Constitution needs to be easier to amend. Tsai cited the signing of the Constitution over the Articles of Confederation, the American Civil War and subsequent reconstruction, the New Deal and 1960s Civil Rights Movement as moments when Americans have “rewritten the Constitution and have found ways to circumvent the deeply structural, problematic features of our 18th century Constitution.” He postulated that the Constitution must be changed to match modern values in order to not be governed by the dead.
Tsai said that Americans need to “give our Constitution a facelift,” meaning that the Constitution must be easier to amend in order for it to serve the needs of the people. He claimed that “our founding charter no longer serves our needs and must be amended, or perhaps even rewritten wholesale, so it can work for us once more.” Currently, in order to amend the Constitution, two-thirds of the House of Representatives and the Senate must vote to propose the amendment, and then that proposal must be approved by three-fourths of state legislatures. Tsai stated that this bar required to amend the Constitution is too high to meaningfully change the Constitution over time. He cited the fact that, “the Equal Rights Amendment, which would have put sex equality explicitly in the Constitution for the first time [was] first introduced in 1924…and nobody has formally recognized the amendments as a new part of the Constitution.” Despite being proposed a century ago, this Amendment has still not been added to the Constitution, alongside other popular protections such as a right to privacy or workers rights.
This issue of Constitutional rigidity is connected to the growing power of the Supreme Court and increase in originalist thinking, according to Tsai. The Supreme Court has been a contentious topic in recent years due to several controversial rulings made by the conservative supermajority, such as repealing Roe v. Wade and declaring that former and sitting Presidents’ “official acts” cannot be tried in court. This latter issue was compounded and brought further into view when President Biden called for te- rm limits and a binding code of conduct for Supreme Court justices on July 29.
Building on this, Tsai brought up the New York State Rifle & Pistol Association v. Bruen case, where the Supreme Court ruled that gun regulation could not be passed without having a historical equivalent, as an instance where the Supreme Court employed originalist thinking. Originalism is the idea that laws must govern in a way that the founding fathers intended, which Tsai plainly stated is a form of being “governed by the dead.” This thinking has often been used by the Supreme Court to block reforms or repeal civil rights granted by the courts, such as Roe v. Wade. Without Constitutional amendment and/or Supreme Court reform, these civil rights will forever be on unstable ground in the U.S.
Tsai also put forth several potential solutions. For amendments, he stated that an amendment could be proposed by “a majority vote by both houses of Congress.” He continued, “you can lower [the approval threshold for states] to say, something like two-thirds rather than three-fourths, [or] we can move toward what we might call direct democracy measures.” This act would allow more Constitutional amendments to pass and potentially give people a direct voice on these issues. As for the Supreme Court, Tsai supported term limits to justices, increasing the size of the courts, and/or changing the requirements for an injunction. However, he added that “many of these reforms require a Constitutional amendment.”
While these issues seem gargantuan, Tsai puts forward three ways that average people can make an impact. First, more people need to see that the courts are an issue. Second, people have to work on issues they care about while linking those issues to Constitutional reform. Third, people need to apply pressure to political parties and civic organizations to create Constitutional reform.
Many issues currently plague the U.S. Constitution, but by working towards reform through civic means, change is possible. Engaging with politics, both local and national, allows anyone to have an impact toward making change and improving policy.
