An Open Letter to the Biden Administration on Popular Constitutionalism

[BeckyDem]

Wednesday, July 19, 2023
An Open Letter to the Biden Administration on Popular Constitutionalism

Mark Tushnet


Aaron Belkin and I have written the following open letter to the Biden administration urging that it endorse and take steps to implement popular constitutionalism as a response to what the President has described as "not a normal" Supreme Court. We urge readers to let the administration know in their own ways that reinvigorating the long and honored tradition of popular constitutionalism is both viable and urgently needed in today's circumstances.

We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.



We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. Although we continue to support expansion, the threat that MAGA justices pose is so extreme that reforms that do not require Congressional approval are needed at this time, and advocates and experts should encourage President Biden to take immediate action to limit the damage.



The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

https://balkin.blogspot.com/2023/07/an-open-letter-to-biden-administration.html


( Food for thought. )

[Fiendish Thingy]

1. Excellent ideas that are unlikely to be implemented in a Biden administration

Ironically, many of the corrupt SCOTUS rulings could be rolled back if senate Dems ever muster the votes to kill the filibuster and pass legislation codifying reproductive rights, gun control, affirmative action, etc.

And if SCOTUS attempted to overturn the new laws, that’s when President Whitmer could step in and say “you and what army?”.

[BlueIn_W_Pa]

2. Why not have Congress exempt SCOTUS from hearing cases?

Article III's Exceptions Clause grants Congress the power to make “exceptions” and “regulations” to the Supreme Court's appellate jurisdiction. Congress sometimes exercises this power by “stripping” federal courts of jurisdiction to hear a class of cases.

[BeckyDem]

3. Good question, thank you.

[BlueIn_W_Pa]

4. I mean, wouldn't it be nice to say

women have an absolute right to decide what they want to do with their own bodies, and say SCOTUS can't review it?

[BeckyDem]

5. Yes!