The author argues that we the people’s rights under the Constitution as amended cannot be characterized as “specific prohibitions” against government. Life, liberty, and property rights, and the freedoms of religion, speech, and press, for example, are neither self-defining nor precise. Accordingly, in our representative democracy, the unelected, unaccountable, life-tenured judges on the Supreme Court should defer to the laws of Congress affecting these rights absent a clear constitutional violation. But the modern conservative Court has become increasingly willing to overturn the laws and policy choices of our nation’s elected representatives based on the judges’ political and ideological preferences. Congress has the constitutional power to control the jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court, but it has not chosen to exercise this power in any meaningful way to preserve and protect the American people’s right to be governed by majoritarian rule
William B. Glidden taught history and political science at Clarkson College of Technology in Potsdam, New York, and spent his career as a lawyer in the Law Department of the Comptroller of the Currency.
Chapter 1: Should We Reform the Role and Operation of the Court?
Chapter 2: The Drafting and Ratification of Our Constitution
Chapter 3: The Original Meaning of the Bill of Rights
Chapter 4: The Original Meaning of the Fourteenth Amendment
Chapter 5: The Court Shreds Congress’s Fourteenth Amendment Enforcement Power
Chapter 6: Fourteenth Amendment Due Process
Chapter 7: The Fourteenth Amendment and the Bill of Rights in the States
Chapter 8: The Court’s Enforcement of the Bill of Rights Against Congress
Chapter 9: Choosing Policies for Abortion, Religious Liberty, and Free Speech
Chapter 10: The Court Should Veto Only Clear Mistakes of Congress
Appendix: Table of Cases
About the Author
William B. Glidden mourns the evisceration of the Fourteenth Amendment and the erection of a juristocracy that has disrespected Congress’s powers almost from the first. Calling for a new constitutional provision requiring unanimity on the Supreme Court to overturn legislation, Regulating Our Constitutional Rights is an essential contribution for our age of revived debate about whether American democracy should continue to allocate so much power to judges.
Glidden presents a history of the U.S. Constitution and its judicial interpretation that leads him to the skeptical conclusion that the U.S. Supreme Court’s interpretations of the Constitution have on balance failed to improve the working of our democratic system. Addressing recent proposals for “Court reform,” he offers a constitutional amendment that would restate the core meaning of the Constitution and implement it by requiring that any decision invalidating a federal statute be unanimous. A useful contribution to on-going debates about the Supreme Court and its role in our government.