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A recent meme on social media about the Constitution and now Justice Amy Coney Barrett got me thinking about the progressive-leftist view of the Constitution and the central role the Supreme Court takes in their belief system. The meme showed an image of Judge Coney Barrett with a quote from Representative Jackie Speier that read: “Under and original reading of the Constitution, Judge Barrett and I could not vote, own property, or enjoy the full protection of the law. Senator Harris would not even be considered fully human. The Constitution is a living breathing document meant to evolve with the times.”
My progressive friend posted it with the statement “So true!”
I told him I didn’t quite understand the quote. The Constitution actually has a process for amending it. It had been amended 27 times over 240 years to change with the times. I pointed out that an originalist-textualist reads the text as it is now, tries to understand its context, and interprets the law as written. Originalism-textualism is not about what the Constitution was in 1789. It did not even have the Bill of Rights fully approved at that point. The text of the Constitution outlines a process for Congress to pass laws, the president to sign and execute those laws, and the judiciary adjudicates the laws.
I also pointed out that If he didn’t fall asleep before reading Article V, he’d find that it does indeed describe a process for amending the Constitution. This has been used for permitting such things as ending slavery, allowing the women to vote, defining citizenship, and ensuring equal protection of the laws, all of the issues called out in the quote.
The meme is striking because it ignores the Constitutional amendment process because until the late seventies, progressives were at the forefront of amending the Constitution. The failure of the passage of the Equal Rights Amendment combined with the growing success and popularity of the conservative movement transformed their approach from working through the electoral process to a strong focus on the courts to get their preferred outcomes. There is an almost religious form of zealotry in pursuit of their goals. It is reflected in raising the court to a type of priesthood where heretics like Amy Coney Barrett are not allowed.
Constitutional Amendments and the Progressive Movement
Progressives were at the forefront of amending the Constitution in the 20th century, undertaking the hard work to get two-thirds of the House and Senate to approve sending the proposed amendments to the states. Then working to get approval by three-quarters of these states to change the text and intent of the Constitution. The Constitution was amended only five times during the 19th century. From 1909 to 1971, the Constitution was amended 11 times. That’s almost two amendments per decade.
These amendments included:
- Permitting use of an income tax;
- Directly electing senators;
- Prohibiting of the manufacture and sale of alcohol;
- Allowing women to vote;
- Shortening the time between election and inauguration of the president and vice president;
- Repealing Prohibition 14 years after it was approved;
- Limiting the number of terms a president can serve;
- Granting the District of Columbia three electors in the electoral college;
- Outlawing poll taxes;
- Clarifying the presidential succession process and outlined the approval of vice presidents when that office becomes vacant; and
- Allowing 18-year-olds to vote
The last four on this list were passed in an 11-year period between 1960 and 1971, led by then- Indiana Senator Birch Bayh who compared to James Madison, the only man to shepherd more amendments than Bayh.
What is striking about all but one of the 27 amendments to the Constitution is that all of the amendments were approved by the requisite number of states within four years of proposal in Congress. Nine were approved within one year, with the amendment allowing 18-year-olds to vote approved by the states within 100 days. The longest approval time was three years 343 data for the amendment limiting a president to two terms in office.
The lone exception is the 27th amendment, which prohibits Congressional and presidential pay raises to take effect until the next term of office, took 202 years to be approved. Unlike more recent amendment proposals, it did not have a time limit for approval when it was proposed at the same time the Bill of Rights was proposed. It is also the only amendment to pass since progressives abandoned the amendment process in favor of seeking favorable Supreme Court decisions.
Most people think the change was caused by the success of the Roe v. Wade abortion case, but the move from change by Constitutional amendment to change by court case was driven more by the failure of the Equal Rights Amendment to be approved by the states. Progressives came to view the text of the Constitution as fixed, but the interpretation as subject to change.
The Failure of the Equal Rights Amendment and the New Importance of the Supreme Court
The amendment process shows a consensus among the people that these amendments are necessary. There was a long period of discussion on each of these not reflected in the time from proposal to approval. While it took only 100 days to approve the amendment allowing 18-year-olds to vote, that 100 days was the culmination of a decades-long debate that became serious as 18- and 19-year-olds of the Greatest Generation fought for the liberation of peoples across Europe and the Pacific in World War II.
The Equal Rights Amendment (ERA) was sent to the states in March 1972 after the passage of the 26th amendment with a seven-year time clock for approval. Given the average time for amendments being approved, the timeline seemed generous. By 1977, 35 of the 38 of the states approved. There was great momentum in advancing women’s rights and the ERA would solidify them.
The ERA seemed on a fast track, but it slowed and, despite a push to meet the 1979 deadline, and even with a three-year extension, it failed. Nebraska, Tennessee, Idaho, Kentucky, and South Dakota revoked their previous approvals between 1973 and 1979. I remember my mom and dad taking me to a march in 1978 in favor of the amendment’s passage. I remember tremendous energy and optimism. The energy that had been pushed for amending the Constitution moved to the pushing for change on the Supreme Court.
Is it any surprise that the Supreme Court nomination process became more contentious in 1987 with the nomination of Robert Bork? His view of the Constitution did not comport with the progressive-leftist views. The election of Reagan and the rise of conservatism caused them to reassess their approaches and switch to achieving their goals through the Supreme Court rather than the amendment process that failed when it came to their views on women’s rights.
Progressivism as Faith
What has been the effect of the emphasis on courts rather than legislation and Constitutional Amendment? Simply put, it’s easier to get general legislation passed and to enact regulations imposing the progressive-left vision and to get friendly justices. It’s easier to try to discredit judicial appointees like Robert Bork, Brett Kavanaugh, and the concept of persuasion in pursuit of righteous goals.
This really came into focus as I read a friend’s social media post. He spoke of a friend who wrote a dissertation on a single chapter of one of the books in the Old Testament. That friend described the changing interpretation of that chapter through the millennia. How religious scholars discussed and interpreted the fixed text. While the text is fixed, its interpreted as a living, breathing thing, challenging the reader always. He even said that the text isn’t written in stone. That seemed ironic because some of it actually was written in stone. He spoke of the religious tradition of Judaism of open-minded study and imagination that adjusts with the times. Its interpretation is done slowly and, in the case of the Christian tradition, through canon law. He then wrote that Amy Coney Barrett represents the “frozen, static, unimaginative approach to following the text of the Constitution rather than looking for ways to adapt it as religious scholars do.”
The Progressive-Left views Supreme Court justices as religious scholars in black robes reading the text and changing its meaning to impose upon a populace rather than working through representative government. Seeking broad consensus among different groups through discussion and persuasion takes on less importance because heretics cannot be tolerated. Conversion is done through threat and accusation a la Kavanaugh and Bork and cancellation if you do not agree. Power is necessary to remove the barriers to the faith.
As such, Roe, Casey, and Obergefell become canon law decreed by the black-robed high priesthood of the Court. Prior to the Obergefell decision, some form of same-sex marriages or civil unions were legal in 38 states, one territory, and the District of Columbia. Three other states without either type of law recognized same-sex marriages performed out of state. The art of persuasion and the laws of math were working, yet it was necessary for the Court to identify the right in existing text where it had not been seen before. Rather than work for approval where victory was in sight, advocates chose to have the law directed by five individuals out of a population of 320 million.
They Can’t Take Yes for an Answer
While the Equal Rights Amendment failed to be added to the Constitution, the goals of its advocates have largely been accepted. The roles of women expanded in society as women moved more into workforce, universities, and the military. This and other laws provided an impetus for equality and elimination of discrimination by sex has changed our society over the last 50 years. 56% of university students are female 50 years since the proposal of the ERA, up from 43%. More women than men have been awarded degrees in the last 30 years. Now half of all medical and law students are female. Women made up 43% of workforce in 1970. Now they make up half. Until the death of Justice Ginsburg, there were three female justices of the Supreme Court. Amy Coney Barrett would bring that number back to three. It’s easy to imagine four or more women on the court in the near future as the increased number of degrees earned by women in the past 30 years is reflected in the highest levels of business, education, courts, political life, and society. The goals of equality of opportunity for women seem to have been largely achieved without the passage of the Equal Rights Amendment.
Despite the success of the women’s rights movement, there is a sense of loss among progressives. The failure of the ERA led them down a road that they must use power and legal force to achieve their goals. Amy Coney Barrett should be an example of their success. A woman who is a successful appellate judge, university professor, and legal scholar who has a family of great diversity. However, her personal and professional successes are threatening because she does not share their views on the Constitution and how it should be amended, interpreted enacted, or enforced.
We can see the future through their promises to “rebalance the court” by adding additional members to ensure their desired outcomes in retaliation for Republicans using Constitutional means first, block Merrick Garland’s Court nomination, and second, approve Amy Coney Barrett’s nomination. Where statehood for Washington DC was once pursued through a proposed 1978 amendment sent from Congress to the states, statehood is pursued now through a simple majority vote of both Houses of Congress. Where the electoral college is clearly described in the Constitution and would require three-quarters of the states to change it, progressive states now work through a multi-state Compact to bypass persuasion and the amendment process to impose the change on the nation.
There is even now discussion that the Constitution itself must be replaced, despite its resiliency in adapting to a changing world over almost two and a half centuries. It is instead a vehicle developed by white men for white men, and useful only for a bygone era where women could not vote, own property, or enjoy the full protection of the law and African Americans were not even be considered fully human.
It’s not about persuasion or political process anymore. It’s an issue of faith.Published in