Right From the Start: Biden/Harris vs SCOTUS

In recent decades, left-leaning commentators and politicians have increasingly criticized the U.S. Constitution and its framers. Cases such as Trump v. United States, the Chevron ruling, and the overturning of Roe v. Wade have intensified these critiques from within the Democratic Party’s progressive base.

The President and Vice President are now advocating for “reforming” the Supreme Court, driven by their perception of injustice in these landmark rulings. This reflects a broader strategy by the Democratic Party to address policy issues through the judiciary rather than legislation.

Historically, the left has often sought to interpret the Constitution in ways that support their policy goals. For instance, when Roe v. Wade was upheld in 1973, despite acknowledging its legal shortcomings, it was supported because many believed the outcome justified the means. Even Justice Ruth Bader Ginsburg criticized the decision, arguing that the right to abortion should be grounded in gender equality rather than privacy.

Progressives often find the Constitution’s limits on political power at odds with their preference for a strong central government. While early progressives did not directly criticize the Constitution, they reinterpreted its clauses to align with their agenda. For example, they broadened the interpretation of the Commerce Clause, initially meant to regulate trade, to justify expanded federal control over various economic activities.

In the 1930s and 1940s, a progressive Supreme Court interpreted the Commerce Clause to expand Congress’s power and used the Taxation Clause to justify increased congressional spending. Critics argue these interpretations distorted the Constitution’s original meaning. Additionally, the Court invoked the Fifth and Fourteenth Amendments to support national laws on abortion and marriage. Originalist scholars contend that these interpretations diverge significantly from the Constitution’s original meaning.

President Joe Biden’s proposal to limit Supreme Court justices’ terms and Vice President Kamala Harris’s suggestion to expand the Court to 15 justices reflect a misunderstanding of the Constitution and the separation of powers.

Over the past 50 years, originalists have increasingly challenged progressive interpretations, prompting some on the left to critique the Constitution. Liberals focus on three main arguments:

1. Illegitimacy of the Constitution: Some argue that the framers exceeded their authority by drafting a new fundamental document. However, recent scholarship indicates that the framers were mandated to create a new Constitution.
2. Undemocratic Nature: Critics argue that the Constitution is undemocratic due to mechanisms like the Electoral College. Defenders say these features protect democracy by ensuring minority voices are heard and preventing regional divisions.
3. Treatment of Minorities and Women: Progressives often link the Constitution to issues of slavery and gender discrimination. While some Founders were slaveholders, many believed slavery violated natural law. The Constitution did not create or mandate slavery; it reflected state laws. The Three-Fifths Clause, for example, was designed to limit the power of states that enslaved people, reflecting opposition to slavery.

Moreover, the Constitution was written in gender-neutral language. The framers anticipated future changes, including women’s suffrage, which was already occurring in some states.

Critics argue that originalism opposes progressive decisions like the 1954 ruling banning segregated schools. However, many originalists support such decisions. The debate over constitutional interpretation continues, with both sides presenting their views on its relevance and application today.

Any proposed changes to the Supreme Court or constitutional amendments must be carefully examined for their potential to serve partisan interests. The Constitution, a living document often misunderstood, requires thoughtful consideration and respect for its foundational principles.

While the left tends to focus on the small handful of 6-3 decisions in high profile cases, the justices more often find themselves in broad agreement on the most difficult legal issues of the day. And when there are disagreements, they are based on legitimate and reasonable legal differences, not the justices’ personal policy preferences or partisan lobbying.

The current administration’s proposed changes lack sufficient support to make a constitutional amendment and appear more as partisan tactics than serious policy proposals. They have no place in serious public discourse. The ongoing dialogue between progressivism and originalism highlights the need for thoughtful engagement with our nation’s core legal framework.