How the Supreme Court swiped the Constitution from we the people.

Popular constitutionalism reflects a simple ideal: The Constitution belongs not just to the courts, but to all of us. The American people can and should shape the meaning of the Constitution.

In fact, the Constitution’s design, which protects democratic voice and freedoms, has enabled Americans to shape constitutional meaning since the founding. We do so through many avenues: voting, protest, political party activism, lobbying, filing lawsuits, and writing op-eds, to name a few. By voting for particular presidents, citizens help shape the federal courts, as well as executive branch policy; in electing members of Congress, they weigh in on questions of federal lawmaking; by myriad other political actions, they bring public opinion to bear on decisionmakers who must interpret the Constitution in their official acts.

When pro-life voters turn out, they throw their weight behind a more restrictive reading of what counts as a fundamental “liberty” under the 14^th Amendment. When pro-voting-rights groups lobby Congress, they reinforce a broad understanding of the 14^th and 15^th amendments. When someone donates to the American Civil Liberties Union to fund their litigation, or shows up at a Moms for Liberty meeting, they are actively engaging the Constitution’s meaning.

All these paths to influencing the Constitution are vital to our ability to function as a self-governing republic of equal citizens. Doing so keeps the Constitution at the center of our popular democratic culture, renewing our loyalty to the document and our sense of its relevance.

Listen to the first episode of the Amicus podcast miniseries By the People here:

But for popular constitutionalism to work, the people must have effective ways to influence constitutional interpretation in all three branches. Unfortunately, the Supreme Court’s rulings have increasingly undermined popular constitutionalism, damaging those links between the people at large and the Constitution.

In its substantive decisions, the court has read the Constitution in ways that distort democracy and diminish the people’s power to influence their representatives. Ways that limit our equal ability to affect the actions of the president, Congress, and the courts themselves—and by those pathways, shape how executive officials, legislators, and judges read the Constitution. Further, the court majority has emphasized methods of interpretation that shut out popular constitutionalism. The majority’s emphasis on originalism and traditionalism denies the current people any legitimate role in constitutional meaning-making—while perversely privileging those who wrote and ratified the Constitution and laws at times when most Americans could not vote or exercise political power.

Our Supreme Court will not admit it, but they have made every effort to take constitutional meaning away from the people, by reading the Constitution to severely weaken our democratic safeguards. The court’s modern distortion of democracy began decades before John Roberts became chief justice, as the court began overturning federal laws enacted to protect ordinary citizens’ role in our democracy, while refusing to limit legislators’ ability to draw their own constituencies for partisan advantage.

Thirty years ago, in Buckley v. Valeo, the court equated money with speech and explicitly rejected political equality as a justification for limiting campaign finance, though it left corporate spending limits standing to protect ordinary voices from being drowned out. In Davis v. Bandemer and Vieth v. Jubelirer, the court pronounced partisan gerrymandering illegal in theory but proved unwilling to stop it in practice, leaving only the hope of future judicial intervention. Finally, beginning with Shaw v. Reno in the 1990s, the court initiated a conservative judicial project to narrow the Voting Rights Act by limiting the mechanisms available to ensure that minorities could influence the political process, such as the intentional creation of majority-minority districts.

Rather than protecting democracy, the Roberts court has further locked out popular influence. In Citizens United v. FEC, it granted corporations full political speech rights, virtually ensuring concentrated wealth drowns out ordinary citizens. Through Rucho v. Common Cause and Louisiana v. Callais, the court extinguished all hope of federal intervention against partisan gerrymandering, effectively legitimizing the practice and allowing politicians to choose their voters without federal constitutional constraints. Finally, in Shelby County v. Holder and Callais, the court dismantled the Voting Rights Act’s two most vital provisions. The power to create opportunities for racial minorities to elect candidates of their choice is now left entirely to the discretion of legislative bodies, which are majority white in every state except Hawaiʻi.

The political branches claim to speak for everyone, but the court has effectively handed our democracy over to oligarchs, hyperpartisans, and one-party states. Ordinary Americans now face immense obstacles just to make their voices heard or to participate in competitive elections for their representatives, let alone shape constitutional meaning. For constitutional meaning to be legitimately popular, it must belong to everyone. Yet right now, it belongs only to a privileged few.

The current Supreme Court majority twists the knife further by embracing a methodology that inherently rejects the current citizenry’s voice. Originalism looks only to the past meaning of the Constitution at the time of the founding or at subsequent enactments. Traditionalism looks to “history and tradition” as aids to interpretation, emphasizing centuries-old common law and long-past legislative enactments (as a recent series of landmark rulings on guns, abortion, religion, and presidential immunity illustrates).

Those methods both explicitly and implicitly reject the current citizenry’s role in the Constitution. Explicitly, they allow the present people to influence constitutional meaning only through formal amendment of the Constitution. While originalists and traditionalists will look back to an array of past sources to understand the Constitution’s text, they deny any relevance for the current populace’s views. The court claims to be interpreting what “we the people” have understood the Constitution to mean, but “the people” whose decisions the court engages reflect a much less inclusive democracy than the one we currently inhabit—one where people of color, women, and the poor could not vote and participate on an equal basis.

Further, because originalists believe the Constitution to have a fixed meaning discoverable through historical investigation, they privilege experts as the ones who are singularly capable of identifying that “correct” interpretation. Ordinary people, not trained in historical or legal research, have little hope of participating in that exercise. While “tradition” does not claim a fixed constitutional meaning, in practice the court looks to esoteric sources like Blackstone and old legal sources that are not easily accessed by laypeople. Neither method invites the average citizen’s voice or participation.

To be legitimately popular, constitutional meaning must belong to everyone. That means that the public must have egalitarian, accessible, and effective channels to influence the law and policy that interpret, reflect, and shape constitutional meaning. Methods of constitutional interpretation should make space for the current public, not just those who held power in a less democratic past.

Democracy is the heart of our nation’s constitutional regime, and its health underwrites the Constitution’s own vitality. As the court saps the people’s power, it weakens the Constitution itself. To revive it, we must return democratic power to all Americans.

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