Why the pending destruction of Roe is a failure of our outmoded Constitution

Constitution Hall in Philadelphia. Photo (cc) 2016 by Dan Kennedy.

With the Supreme Court on the brink of overturning Roe v. Wade, it’s a good opportunity to remind ourselves of the extent to which our democracy has lurched off the rails.

Three of the five anti-Roe justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote and were confirmed by senators who represented far fewer Americans than those who voted against confirmation. Gorsuch occupies the stolen seat that should have gone to Merrick Garland. Barrett was rushed through at the last minute following the death of Ruth Bader Ginsburg.

This is not democracy. A few years ago, I laid it out at GBH News — and addressed the falsehood you’ll often hear that our system was designed to protect minority rights from majority rule. (The Bill of Rights is what protects the minority.) I hope you’ll give it a read. We are long overdue for a thorough-going update to our 18th-century constitution, which, quite simply, no longer works.

6 thoughts on “Why the pending destruction of Roe is a failure of our outmoded Constitution

  1. Lex

    I agree that we need an updated Constitution. Unfortunately, the likeliest way that we’ll get one is via a constitutional convention being pushed by rich dark-money forces. The thing about such a convention is that anything and everything is up for grabs. We could become a fascist dictatorship overnight under such a system manipulated by dark money. Of course, we could become a fascist dictatorship in January if Dems don’t hold onto Congress. But for now, better the devil we know.

  2. StephenB

    Dan, thanks for the link to your earlier GBH article, nicely argued, which I missed the first time around. The minoritarians are deliberately muddying the waters when they invoke the Constitution. The Constitution protects their rights not their opinions. So long as the rights of everyone are preserved, majority rules.

  3. StephenB

    I also agree that we need an updated Constitution, what I would call version 3.0, since the Articles of Confederation were version 1.0 and our current version is 2.27. Let’s imagine what would be in Constitution 3.0. For starters, no Electoral College, no Senate (a uni-cameral legislature with some representatives selected by sortition), mandatory retirement age for Supreme Court justices, civil and equal rights sown into the fabric right from the start…

  4. cynthiastead

    You are quite right. It is not democracy. But we live in a Republic. I do not WANT to live in a democracy, and more than Robespierrre’s France (and witnessing that is what put those brakes on democracy in the first place). If the Trump people outnumbered progressives – and they might – would you want them to have straight-up ‘majority rules’ powers?

    Cynthia

    1. Dan Kennedy

      Cynthia, you really and truly don’t understand what it means to have a republican form of government. One thing it does *not* mean is that some people’s votes count more than others’.

  5. Blanket abortion bans prevent abortions that are necessary under Jewish law, which values the health of a living, breathing person (in this case, the mother) above everything else. The court seems to favor religious rights – let’s see if it’s only one religion they respect.

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