Although Congress and the American people have been very careful to preserve the Constitution throughout our history, they have not hesitated to amend it in order to correct harmful Supreme Court rulings and to promote popular democracy. That is precisely the purpose of the proposed 28th Amendment, which would overturn cases like Citizens United and enhance political democracy and the First Amendment by allowing Congress to ensure that the voices of the people are heard in campaigns. In fact, 7 of the 17 amendments to the Constitution adopted since the Bill of Rights — more than 40% —corrected dangerous Supreme Court decisions which, like Citizens United , undermined popular democracy, whether by undermining the ability of some Americans to participate in our democratic process, or by limiting the ability of all Americans to address issues of pressing national concern through the political branches of government. These have included some of the most important amendments in U.S. history. Specifically:
- The 13th and 14th Amendments, which banned slavery and required the states to provide equal protection of the laws, were enacted after the Civil War to overturn the disgraceful Court decision in Dred Scott v. Sanford, 60 U.S. 393 (1857), which had claimed that blacks were inferior to whites and upheld slavery.
- The 19th Amendment, which granted women the right to vote in 1920, reversed several court decisions, including the Supreme Court’s ruling in Minor v. Happersett, 88 U.S. 162 (1875), which disenfranchised women and ruled that they did not have the right to vote under the Constitution.
- The 24th Amendment in 1964 abolished poll taxes that literally taxed people who wanted to vote, reversing the Supreme Court’s decision in Breedlove v. Suttles, 302 U.S. 277 (1937), which had ruled that such taxes were constitutional.
- The 26th Amendment made clear that all U.S. citizens 18 years of age and older have the right to vote in 1971. That overruled the Supreme Court’s ruling in Oregon v. Mitchell, 400 U.S. 112 (1970), which said that Congress could not reduce the voting age from 21 to 18.
Opponents claim that the 28th Amendment would be different than these amendments because it would allegedly restrict rather than expand rights. But the defenders of political inequality protested that granting women and young people the right to vote violated their own rights, just as corporations and the ultra-rich today claim a “right” to spend unlimited amounts on elections and drown out the voices of the people. Moreover, even accepting the opponents’ narrow interpretation of expanding or diminishing “rights,” several constitutional amendments have overturned damaging Supreme Court decisions and did not “expand” rights. Specifically:
- The 16th Amendment in 1913 gave Congress the authority to enact income taxes, overturning the Supreme Court’s ruling in Pollack v. Farmers’ Loan and Trust Co., 157 U.S. 429 (1895), which said that Congress could not do so. No one would claim that having to pay income taxes expands individuals’ rights. But the Amendment was adopted so that the people through their Congressional representatives could make that decision, just as the 28th Amendment would restore that authority concerning campaign finance reform.
- The 11th Amendment in 1795 overturned Chisholm v. Georgia, 2 U.S. 419 (1793), and provided that a citizen of one state could not sue another state in federal court. That amendment clearly took away a “right” that the Court said that citizens had. But shortly after the founding of our republic, Congress and the people felt that providing such sovereign immunity to states was very important to our new democracy, and reversed the Supreme Court. The 28th Amendment is even more important today in order to restore the damage done recently by the Court to our popular democracy.
In truth, SJ Res 19 is only the latest in a long American tradition of constitutional amendments enacted to overturn dangerous decisions handed down by our nation’s highest court.