By U.S. Representative Jaime Raskin
April 13, 2023
*This is the foreword to our series The Promise of an Amendable Constitution in an Uncertain Era. You can find the rest of the articles in the series here.*
Whose Constitution is it?
Surely it is the people’s Constitution if the famous first three words are to be respected.
And what kind of government does our Constitution create?
The answer is contested. Many of my colleagues in Congress delight in proclaiming that “we’re a republic, not a democracy.” It’s now standard GOP bumper-sticker fare in any fight over voting rights, gerrymandering, the filibuster or statehood to declare, as Senator Mike Lee (R-UT) tweeted: “We’re not a democracy.”1Senator Mike Lee (@SenMikeLee), Twitter (Oct. 7, 2020, 9:43 PM), https://twitter.com/SenMikeLee/status/1314016169993670656.
But this right-wing word play is a far better expression of subjective political desire than rigorous constitutional analysis.
A republic is just a representative democracy, and it is, of course, true that we do not meet Athenian-style in a nationwide New England Town Hall Meeting to govern ourselves.
We elect our representatives at the local, state and federal levels to make laws and policy.
But we are a republic—a representative democracy—that has become far more democratic over time. And we have grown far more democratic because of the political struggles of the people for expansion of our democratic rights in the Constitution.
If you take the seventeen amendments added to the Constitution after the original 10 in the Bill of Rights and you exclude Prohibition and its repeal, the vast majority are suffrage-expanding, democracy-deepening popular empowerment amendments produced by the great social and political movements of our history. Indeed, seen through this prism, our Constitution is the thrilling chronicle of the profound struggles of the American people to become the world’s greatest multi-racial, multi-ethnic constitutional democracy.
The Civil War and Reconstruction marked the turning point for democratic transformation. The Thirteenth Amendment abolished slavery; the Fourteenth inscribed equal protection and due process rights; the Fifteenth banned race discrimination in voting Amendment.
And then, with the paradigm struggle to dismantle slavery and white supremacy now embodied in the Constitution, the trajectory of progressively more democratic constitutional change was unleashed. The Populist and Progressive push to get rid of “corporation Senators” gave us the Seventeenth Amendment (1913) guaranteeing popular election of United States Senators. The Nineteenth Amendment (1920) doubled the franchise in America by granting women the right to vote. The Twenty Third (1961) gave residents of the federal district the right to vote in presidential elections. The Twenty Fourth (1964) abolished poll taxes in federal elections, and the Twenty Sixth (1971) lowered the voting age to 18.
Given the democratic character and dynamics of our Constitution, one can only regard with amazement how many progressives and liberals have become “fraidy cats” today about amending the Constitution.
Surely it makes sense to be mindful and careful about the dangers of right-wing constitutional amendment proposals—on everything from school prayer and flag desecration to fetal personhood and restoring state legislative control over the selection of U.S. Senators—and to oppose a MAGA-stacked constitutional convention in the 21st century. But it is self-defeating and ahistorical to surrender the whole project of creating a “a more perfect Union” through continuing constitutional amendment and political reconstruction.
Indeed, the plethora of constitutional amendments proffered by the right-wing today just demonstrates a shrewd recognition of the traditional power of constitutional politics. Political conservatives recognize that progressive movements have planted flags around fundamental principles—equal protection, freedom, the right to vote, gender equality—which have provided people in motion the organizing concepts for political activism, the rhetoric of progress and the tools for national agenda-setting.
Of course, one should not fetishize the process of formal constitutional amendment, which may be necessary for the launch of enduring political change but is certainly not sufficient to maintain it. The story of the Fifteenth Amendment is instructive as it led immediately to Black enfranchisement and political representation in the 1860’s and 1870’s. But that was only because the amendment was accompanied by the sustained project of Congressional Reconstruction and Black political organizing throughout the South. The collapse of Reconstruction in 1876 and the development of racist disenfranchisement schemes, from grandfather clauses and literacy tests to KKK terror, washed away Black voting rights and political power until the modern Civil Rights Movement arose in the 1960’s. Effective constitutional politics does not just depend on sustained popular organizing before ratification of an amendment but also on sustained popular organizing after ratification.
Meantime, the winding tale of the Equal Rights Amendment (ERA) shows that constitutional movements can have tremendous political value, both structurally and culturally, even when they fall short of the goal of formal constitutional amendment. Although the original ERA narrowly missed ratification by three-fourths of the states in the 1970’s, the movement has continued and the original powerful demand to enshrine gender equality in the Constitution has catalyzed a huge number of legislative and jurisprudential changes at every level of politics. The demand for equality of rights under law led to passage of numerous state-level ERA constitutional amendments, strong federal and state anti-discrimination laws and, significantly, to transformation of the Supreme Court’s Equal Protection jurisprudence under the Fourteenth Amendment so that gender-based discrimination now triggers heightened scrutiny and requires an “exceedingly persuasive justification.”2U.S. v. Virginia, 518 U.S. 515 (1996).
This kind of relentless constitutional politics is urgently necessary today to address America’s dangerous democracy deficit and renew the momentum of democratic enlargement. The right to vote is still not secure against hostile state legislatures and judicial majorities; gerrymandering makes a mockery out of democracy; plutocracy and corporate power are running amok in our elections; the Electoral College is a constant danger to popular government and an accident waiting to happen every four years; and we still don’t have the Equal Rights Amendment fastened into place. Renewal of the constitutional design is imperative.
Early in 2023, the Brennan Center for Justice deepened this important conversation when it hosted a symposium, “Constitutional Amendments: Time to Rethink?” to explore whether Article V is a viable means to advance legal change and political reform in the current climate. As many panelists argued, Article V holds great potential to shape public sentiment around a progressive vision of the Constitution.3Symposium: Constitutional Amendments, Brennan Center for Justice (Feb. 16, 2023), https://www.brennancenter.org/our-work/research-reports/symposium-constitutional-amendments. As John Kowal and Wilfred Codrington contend in their important book, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union, the real traditional values enshrined in our Constitution are those of dynamic progressive change. We could be—we should be—on the cusp of resurgent progressive constitutionalism today. The essays in this Symposium flesh out the vision nicely. It is up to all of us to make this vision a reality.
Representative Jamie Raskin represents Maryland’s 8th Congressional District in the U.S. House of Representatives.
Suggested Citation: Jamie Raskin, The Democratic Meaning of the American Constitution, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1Senator Mike Lee (@SenMikeLee), Twitter (Oct. 7, 2020, 9:43 PM), https://twitter.com/SenMikeLee/status/1314016169993670656.
- 2U.S. v. Virginia, 518 U.S. 515 (1996).
- 3Symposium: Constitutional Amendments, Brennan Center for Justice (Feb. 16, 2023), https://www.brennancenter.org/our-work/research-reports/symposium-constitutional-amendments.