WASHINGTON, DC – Congressman Jamie Raskin (MD-08), in conversation with independent analyst Rick LaRue, today released the following Q&A discussion on the Constitution, the right-wing capture of the Supreme Court, and the state of American democracy. LaRue writes at Structure Matters and is a Contributor at The Fulcrum. Constitution Day is September 17, which kicks off Constitution Week through September 23.
On this Constitution Day, 2023, when we confront immediate and real threats to our democracy – and thank you so much for your own efforts leading the response! – why do you think it is important to keep the Constitution on our radar screen?
The American people face continuous, vehement and sometimes violent efforts by a significant political faction to trample and bypass the Constitution. As Donald Trump has put it in his unceasing efforts to overthrow the 2020 presidential election and free the January 6th insurrectionists: “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”
Moreover, the vicious assault on constitutional processes and values we see today is not just coming from political opportunists and ideological fanatics.
It is also coming from a Supreme Court that is the unmistakable product of sinister right-wing Court-packing. This Court has ripped the heart out of the Voting Rights Act, converted every for-profit corporate treasury in America into a potential partisan political slush fund, invented reactionary doctrines like the “major question” rule out of whole cloth and overturned a half-century of Supreme Court precedent to dismantle women’s reproductive freedom.
The Constitution does not belong to the Supreme Court but to the people, and we must save it from all the authoritarianism set loose in the land. Eternal vigilance is still the price of liberty.
How would you characterize the evolution of advocacy for protecting and defending the Constitution over the last few years? Has it become more partisan?
Right-wing forces make stuff up to paste their political agenda on to the Constitution.
Take the Second Amendment. The gun industry is not satisfied with the Roberts Court’s landmark 5-4 decision in District of Columbia v. Heller holding that, quite apart from a citizen’s service in a “Well-Regulated Militia,” there is an individual right to own a handgun for self-defense and a rifle for hunting and recreational purposes.
That wasn’t enough for the firearms manufacturers and the NRA because Justice Scalia in Heller took pains to point out that the government still has power to enact reasonable gun safety laws with respect to background checks, taking guns to sensitive public places, and banning weapons unnecessary for the stated purposes, including presumably AR-15s and other weapons of war.
So now the right-wing NRA dogma, loyally parroted by my GOP colleagues, is that the purpose of the Second Amendment is to give the people the insurrectionary right to overthrow the government if it turns tyrannical, which means the people must have an arsenal equal to that of the government, including AR-15s, other military-style assault weaponry, machine guns and perhaps even tanks and nuclear weapons. The statements from my colleagues are eye-popping, like Lauren Boebert’s solemn assurance that the “Second Amendment has nothing to do with hunting, unless you're talking about hunting tyrants, maybe,” and Matt Gaetz’s pronouncement that the “Second Amendment is not about hunting, recreation, or sports. The Second Amendment is about the ability to maintain, within the citizenry, an armed rebellion against the government if that becomes necessary.”
This insurrectionary theory of the Second Amendment is an absolute fraud easily debunked by constitutional text, structure and history.
Far from making violent insurrection an individual or collective right, the entire architecture of our structural Constitution is designed to oppose and defeat violent insurrection. Article I, Section 8, Clause 15 says that Congress has the power to “call forth” the Militias from the states to “repel invasions and suppress insurrections.” The Republican Guaranty Clause in Article IV says that Congress must not only guarantee to the people of the states a republican form of government but must assist them in putting down “domestic violence.” The Treason Clause, the only place in the Constitution where a crime is defined, says that treason consists only of “levying War against” the Union or “adhering to” the enemies thereof. Under Article I, Congress has the power to discipline and regulate the “well-regulated” Militias organized in the states, and no rump group like the Proud Boys or Oath Keepers can simply declare itself a Militia.
Perhaps most strikingly, Section 3 of the 14th Amendment states that anyone who has sworn an oath to support the Constitution but has “engaged in insurrection or rebellion” or “given aid or comfort” to the perpetrators shall never be allowed to hold federal or state office again.
Is it possible that the Second Amendment in invisible ink establishes a right to overthrow the government while the rest of the Constitution creates an overwhelming duty to suppress insurrection and oppose domestic violence? It is not. This freakish concoction by the right-wing has no basis in our Constitution but it is keeping us from passing desperately needed gun safety laws favored by the vast majority of the American people, such as a universal violent criminal background check which is supported by 90% of the American public.
I won’t bore you with all the Supreme Court precedent debunking an asserted right to overthrow the government. Suffice it to say that if this right existed, at least some of the January 6th insurrectionists would have had their indictments quashed or convictions reversed by now. Not one of them has.
President Lincoln, whose bust sits on my desk as a reminder of the primacy of liberty and union, called insurrection “a war upon the first principle of popular government—the rights of the people,” specifically the voting rights of the people and our right to choose our own officials and representatives.
It’s time to end the catastrophe of rampant gun violence, which steals the lives of more than 100 Americans every day of the year. But that means knocking down the central fallacy of the so-called “Second Amendment people.”
We still have three years to go, but the 250th anniversary of the Declaration of Independence has already begun to receive attention (e.g., the lead op-ed by Ted Johnson in the Washington Post, in the 6/15/23 print edition). What will you be looking to glean from the observances leading up to and including 2026 as you contemplate the 250th anniversary of the Constitution in 2037?
The year 1776 is significant because it represents the beginning of the end of the monarchical, dynastic, aristocratic and theocratic models of government that elevated kings, queens, barons, high priests, bishops and nobles above the interests, needs and rights of the people. The Declaration set forth the animating principles of equality, freedom and democratic self-government, ushering in an age of constitutional democracy and the sovereign rights of the people.
The 250th anniversary of the Constitution should be not only about defending our essential constitutional order, but also about amending the Constitution to keep democracy vibrant and growing in this century. If you read the Constitution and the Bill of Rights and subsequent Amendments as I do, you can see it as the chronicle of the people’s two-and-a-half century struggle for strong democracy, equality and freedom. The words and spirit on the pages of the Constitution were paid for in the blood of American Revolutionaries, Abolitionists, Union soldiers, Reconstruction fighters, Suffragettes, Populists, Progressives and activists in the Civil Rights Movement.
The real question for the big anniversary in 2026 is not about the past but about the future. What constitutional changes do we need to make to keep democracy growing and strong?
You have long opposed the Electoral College and, while in the state legislature, led Maryland to be the first state to join the National Popular Vote Interstate Compact in 2007. Were we ultimately to abolish the Electoral College and use the popular vote to decide the presidency, is there anything about doing so that you would want us to be sure to prevent or be mindful of?
The Electoral College is one of the obsolete anti-majoritarian filters still hanging on in our Constitution. It was designed to separate the sovereign political will of the people from control over our elected leaders and government. The Framers were explicit in the Electoral College’s antidemocratic intent, and today it provides a landscape of antique booby traps that strategic bad-faith anti-democratic actors like Donald Trump and his co-conspirators can use to subvert the will of the people. The Electoral College has overthrown the people’s choice for president five times in our history, twice in this century alone, and today its odd nooks and crannies can actually get you killed.
It’s time to adopt the National Popular Vote initiative to move to a popular, ranked choice vote for president. In Maryland back in 2007 we passed the first law adopting the National Popular Vote Interstate Compact. The compact is simple: it sets up a mechanism whereby states agree to allocate their electors to the presidential candidate who wins the national popular vote rather than their state’s popular vote. The advantage of this strategy over a constitutional amendment is that we only need enough states to pass laws adopting the compact that add up to 270 electoral votes, instead of the two-thirds majority of states required to ratify a constitutional amendment. Once we see the new system working in practice, I feel certain we will amend the Constitution to adopt the system formally. Most constitutional amendment have come into existence this way—before the 19th Amendment was enacted in 1920, a majority of states had acted on their own to enfranchise women.
When we succeed in electing our president through a national popular vote, we should also update our election laws to reflect the ranked choice voting system, which fairly distributes votes amongst the candidates to guarantee the winner has majority support, reduces negative politicking and prevents the possibility of there being a recount.
In particular, if we were to decide the presidency by popular vote, what do you think about including a provision mandating majority outcomes (i.e., a runoff, be it instant or second round)?
Yes, the most logical way to implement this shift is through a national popular vote with a majority requirement based on ranked choice voting. This is effectively a built-in instant runoff mechanism. Ranked choice voting overcomes the problem we experience now with people who do not earn the most votes in the majority becoming president—that is what happened in 2000 and 2016. The best way to choose our president is to elect them like we elect our mayors, our governors and everyone else: whoever gets the most votes from eligible Americans, wins.
Other than amending the Constitution to remove the Electoral College or clarify the Second Amendment, what other changes to the Constitution rise to the top of your need-to-be-changed list?
The Equal Rights Amendment obviously. I also believe that we must get rid of unaccountable dark money in our politics and reverse the blow that the Supreme Court’s conservative majority dealt to our democracy in Citizens United v. FEC. I have cosponsored legislation to establish the Democracy For All Amendment, which would cut off the pipeline between corporate and super-wealthy donor dollars and political power and governmental influence. Political power must flow from the people, and it is time to formally elevate democracy over plutocracy in our Constitution, something hinted at in the 24th Amendment banning poll taxes in federal elections.
We also should build a constitutional amendment guaranteeing the right of every citizen to vote. Right now, we do not have a universal, guaranteed right to vote—instead, we are working from a patchwork of ad hoc antidiscrimination amendments to try and defend the foundation of our democracy. It’s not working very well with this Court.
I have some other ideas too for another day.
Which of the above, if any, have bipartisan support or have the best chance of earning it (notwithstanding the fact that many such proposals are strictly democratic (small "d") or nonpartisan)? Where partisan or special interests resist such change, what can be done to overcome it?
As the philosopher John Dewey said, “the only solution to the ills of democracy is more democracy.” The problem that we face today is not democracy but the impediments to democracy. Our greatest challenge is thus to harness the remarkable power of American citizens, coming together in a nonpartisan spirit of solidarity and common sense, to overcome big corporate money and power that would thwart the common good and subdue the political system.
The vast majority of Americans favor a direct national popular vote for president, a constitutional right to vote, and the ERA. What is truly constitutional should not be partisan. Polls show the vast majority of Americans favor a constitutional right to vote, direct election of the president, and the Equal Rights Amendment. They’re not partisan in nature.
The 250th anniversary of the Constitution, in 2037, is 14 years away. That is the same amount of time that transpired between the Washington Post editorializing in 1899 that the Constitution was "unamendable" and the ratification of two amendments in 1913 (per the polarization of The Gilded Age giving way to the Progressive Era). Can we celebrate this major anniversary of the document by repairing it?
I certainly hope so and will work to see that the Constitution continues to evolve to meet our circumstances. The vast majority of the Amendments we have added since the original ten in the Bill of Rights have been suffrage-expanding and democracy-strengthening amendments. Let’s keep the wheels of strong democracy turning.
Any last word about what else we can all do to make September 17th a more consequential day in our civic lives?
Read the Constitution and give a little speech about something you found there to some young people near you! Be sure to find the ban on presidents and other federal officials receiving presents, emoluments, offices and titles “of any kind whatever” from Kings, princes and foreign states without the consent of Congress. This is what Donald Trump calls the “phony Emoluments Clause”! Can you find it?
Can you find the ban on Congress awarding Titles of Nobility? The ban on religious tests for public office?
Can you find any mentions of three “coequal branches” in the Constitution or any mentions of God or gods or a deity?
The Constitution is your principal weapon of intellectual self-defense against the daily rampages of autocrats, kleptocrats, plutocrats and theocrats. Don’t leave home without it. Keep it close to your heart.
Happy Constitution Day.