The Trump Administration Is Violating the Constitution. This Legal Theory Can Help Us Move Forward.

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4 days ago

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In the coming months, the Supreme Court is likely to release decisions in a number of cases that will fundamentally impact the lives of millions. But we don't need to wait until nine elite lawyers in robes weigh in to know some basics about our rights and freedoms here in the US.
For example, we know that stripping people born in the United States of their citizenship, as the Trump administration has proposed doing, is unconstitutional. It's right there in the Fourteenth Amendment: All persons born in the United States 'are citizens of the United States.' You don't need to be a Supreme Court justice to understand what that means. You don't even need a law degree to know without a doubt that the Constitution makes it clear that people born in the United States are citizens from birth.
You also don't need to be a lawyer to say that the separation of church and state guaranteed by the First Amendment means that parents shouldn't be able to use their religion to justify banning books from schools with LGBTQ+ characters.
And you don't need any specialized training to know that when the Constitution says all people are entitled to 'equal protection under the law,' that should apply to trans people, who should not be denied health care based on their gender identity.
In the United States, we're all governed by the 7,591 words in the Constitution and its amendments. But who decides what those words mean? The answer is us. We, the people, decide what the Constitution means and when it's being violated.
This might not be what you were taught in school, where most of us were told that interpreting the Constitution is the exclusive job of judges and the Supreme Court justices. That's because Americans, conservatives and liberals alike, have largely embraced the idea of judicial supremacy: that judges are the ultimate authority when it comes to interpreting the Constitution. Under that view, the law is what judges say it is, leaving the people with almost no role at all in making meaning of the law.
Letting judges and justices take exclusive control of interpreting the Constitution hasn't worked out well for most of us. Historically, white men have dominated the judiciary. And while it actually isn't a requirement that federal judges have law degrees, the last time a Supreme Court Justice was appointed without having attended law school was 1941. This matters because people who go to law school are disproportionately wealthy: a study by UCLA law professor Richard Sander found that 2% of law students come from the poorest quarter of American families, while 75% come from the richest quarter.
The result of this unrepresentative judiciary is centuries of decision-making that have not served the people well. In just the last few years, the Supreme Court has decided the Constitution doesn't protect the right to abortion but does hold that guns should be easily accessible in our communities and that states can change their voting laws in ways that disproportionately impact Black voters and voters of color. As Harvard Law professor Niko Bowie summarizes it: People say that federal courts are critical for protecting the rights of minorities, but the truth is that throughout American history, 'the principal 'minority' most often protected by the Court is the wealthy.'
Fortunately, we don't have to accept judicial supremacy. In fact, many of America's most admired leaders have rejected it, like Thomas Jefferson, himself a wealthy white man, wrote that the idea of 'judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.' And Abraham Lincoln argued that if we let judges make the most important decisions about what our Constitution requires, it would mean 'the people will have ceased to be their own rulers.'
The opposite of judicial supremacy is defined by Larry Kramer of Stanford Law School as 'popular constitutionalism,' giving the people 'active and ongoing control over the interpretation and enforcement of constitutional law.' In other words, the people interpret the meaning of the Constitution — the foundational principles that govern every aspect of how we build this country — and ensure that meaning is enforced.
This isn't an easy task under the best of circumstances, and it got significantly harder when Donald Trump retook power on January 20. It requires us to read and understand the Constitution and to make values-based judgements about what it requires, allows, and prohibits. Even harder, it then means we have to enforce our understanding of the Constitution by building the political power to act when we see the Constitution being violated and to ensure our meaning is the one that ultimately wins out.
In a democracy, this requires building popular support for our views, and there are no shortcuts. And even reaching majority support for our constitutional interpretation isn't enough without action. Professor Kramer, in his book The People Themselves, describes how, since the early days of the United States, the people have enforced the Constitution against 'errant rulers' in a number of ways, many of which apply directly to our current moment. Enforcing the Constitution against our current errant rulers looks like voting them out of office, petitioning (calling and writing your elected representatives) and assembling (protesting), defending the rights of people unjustly targeted by law enforcement, engaging in jury nullification (finding somebody not guilty if they broke a law but the law was unjust), participating in consumer boycotts, and more. As we confront arguably the most errant ruler in the history of the United States, it is our obligation as citizens of a democracy to use these tactics to organize our communities around a vision of what the Constitution means and how it should shape our lives.
We don't need to say that our Constitution is perfect in order to do this. Instead, embracing a constitutional vision for a true democracy enables us to do the work of building a better world in the here and now by fighting for what's best in the Constitution, like the promise of equal protection under the law for all people and the freedom to chart our own political future. At the same time, it also points us toward the structural reform that will eventually be needed to make the promises of our Constitution real. It's the difference between saying, 'This is the best we can ever do,' and saying, 'This is the very best that we can do now. And here is how we will change in order to do even better in the future.'
Over the coming months and years, we're going to hear a lot about what Donald Trump thinks the Constitution means and what it lets him do, and a lot about what the Supreme Court thinks about those same things. But none of that matters as much as what we think the Constitution means — as long as we commit to making our meaning the one that prevails.
Originally Appeared on Teen Vogue
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