Constitutional fetish worship has been a feature of American politics from practically the moment it was enacted. This document, entirely by accident, serves as a core source of government legitimacy, despite the fact that it was hurriedly slapped together over a few months and never worked as intended, not even at the beginning.
It would be a good thing if we had less reverence for the Constitution, allowing us to go about perfecting it democratically, through a deliberative process of representatives of the people. Instead, we get the worst of all possible worlds: a culture of Constitution worship that resists change, yet also massive alterations to the founding document, entirely from unelected men and women in robes.
In short, if you want to change the Constitution, you get the Supreme Court to rewrite it for you. That only requires five justices to exercise the rule-by-decree powers they have arrogated to themselves, instead of the incredibly cumbersome amendment process requiring two-thirds of the Senate and House, and three-quarters of the states, which is impossible in our hyper-polarized times. As Thomas Jefferson once wrote, under judicial review, the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Now, one of the central arguments in favor of judicial review is that it is necessary to protect individual constitutional rights from being eroded by the legislature. So let’s look at both sides of the equation, read through the Constitution, and compile a non-exhaustive list of the ragged holes the Supreme Court has blasted in it, through action or inaction.
Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States…” The Court has gradually stolen this power from Congress over the years. The recent decisions Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, in which the Court seized control of the entire administrative state, are just the capstones.
Article I, Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…” In Alexander v. South Carolina State Conference of the NAACP, the Court has signed off on egregious gerrymandering so “the People” in an increasing number of Republican states have little or nothing to do with who is elected to the House.