Ruth Bader Ginsburg leaves us with belief in the ideal of ‘We the People’
Ruth Bader Ginsburg believed in the ideal of “We the People” and often referred to those words from the preamble to the Constitution, always observing that it only included a subset of the population when it was written because blacks and women, among others, were excluded.
To Ginsburg, “We the People” should always be the north star that we use to measure our journey toward a more perfect union. She knew, as both a woman and a Jew, how imperfect our democracy was and still continues to be, and she strove to ensure that “We the People” included as many as possible and that all people were provided equality under the law.
One of the roadblocks to true popular sovereignty is the use of several structures in government to secure partisan advantage and destroy our democracy. Those efforts by Republicans coalesce with Donald Trump and Mitch McConnell rushing a Supreme Court confirmation. Consider that Trump became president despite having three million fewer votes than his opponent, while Republicans control the Senate despite fewer people voting for Republicans than Democrats. So these popular vote losers are stealing a second Supreme Court seat after earlier robbing popular vote winner Barack Obama of his nomination by blocking the moderate judge Merrick Garland from even having consideration.
Such minority rule creates a crisis for our democracy and threatens the survival of the country. The problem is just getting worse. Demographic projections show that in a decade, 85 percent of the population will be clustered in only 15 states. This means that 70 senators will collectively represent some 15 percent of the population. The Electoral College will continue to buoy these chances for Republicans even when it is all but conceded in advance that their candidate would lose the popular vote. These popular vote defeats will occur despite efforts by Republicans to block constituencies of Democrats from taking part in elections.
This power for a rabid faction of Americans must not be allowed to stand. No principled account of democracy allows a heavily white rural minority to rule over the more diverse urban and suburban bipartisan majority. No principled account of democracy allows that minority to secure their own advantages in packing the federal courts for decades to come in a culture war they have lost in the national arena. But if Joe Biden wins the election, with a Senate bipartisan majority led by Democrats, the dominance of the minority to the detriment of the country can be tackled many ways.
First, eliminate the filibuster and allow the Senate to at least reflect such wishes of the bipartisan majority. Second, admit the District of Columbia and Puerto Rico as states to increase the seats in the Senate and start to address the dominance of that institution by states with low populations. Third, increase the seats in the federal judiciary so judges who owe their positions to a president and Senate elected by a minority cannot lock in an unfair advantage. Fourth, increase the seats in the Supreme Court to counteract Republicans stealing vacancies for their own selections.
None of these four actions would be necessary if Republicans behaved responsibly by placing the legitimacy of our institutions above partisan politics. But if Republicans are determined to move forward to pack the Supreme Court with another nominee to undermine its legitimacy, then those who care about the survival of our country must respond to right the balance and to restore some semblance of popular sovereignty.
Moreover, in order to protect such legitimacy of the Supreme Court, any increase in the number of justices must come with an amendment to the Constitution to set that new number in place and establish term limits for those justices as well as all future justices, so there will be regular judicial vacancies and so no single nomination carries so much importance.
History teaches that a minority can only hold power if it deters the will of the broader bipartisan majority. Yet the minority is dictating terms in the United States, and that minority has to know that if it continues to cheat, there will be ramifications and accountability. Such accountability is key because younger Americans are perhaps the most diverse in our history. These voices cannot be drowned out to lock in the power of a vanishing minority which desperately takes everything it can on the way out.
Ginsburg knew that “We the People” is an evolving ideal. It hides decades of discrimination and a history of often violent inequality that continues to this day. To honor her brilliant legacy, we must not only celebrate all which she achieved, but also understand the enormity of the challenge ahead by avoiding a cataclysmic rupture of the country with every available means to rescue our democracy from the rule of this autocratic minority.
Paul Schiff Berman is a law professor at George Washington University. He served as a clerk for Justice Ruth Bader Ginsburg with the Supreme Court.
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