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America Is Due a Third Reconstruction

The nation can thank the Supreme Court for its periods of turmoil. It’s time for a new jurisprudence.

Founding father: Thurgood Marshall, the first Black Supreme Court justice, is as important in shaping of the Constiution as its framers.

On this 250th anniversary of the signing of the Declaration of Independence, we recognize “the triumph of the American spirit,” the demand for revolution, and the powerful principles embedded in its elegant preamble. Remarkably, the Declaration’s celebrated freedom fighters, some of whom would later become presidents of the United States, demonstrated no revolutionary leanings toward freeing women from political, economic, or social subordination and subjugation. They championed slavery (it was legal in all 13 colonies) and were mildly indifferent at best to terrorism against Indigenous peoples. Merely a dozen or so among the 56 signers did not own enslaved Africans.

Yet this heralded anniversary of the Declaration demands a closer reading of the text. Because, on inspection, it’s clear that many of the grievances documented against King George III mirror the conditions under President Donald Trump, across both of his terms in office. Trump has “refused his Assent to Laws, the most wholesome and necessary for the public good”; “obstructed the Administration of Justice”; “obstruct[ed] the Laws for Naturalization of Foreigners” by refusing to “encourage their migrations”; “kept among us, in times of peace,” National Guard officers “without the Consent of our legislatures”; and “excited domestic insurrections.” The Declaration’s language accusing King George of “transporting large Armies of…Mercenaries to [complete] the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation,” eerily parallels this moment in America.

But it’s also clear that the backslide into tyranny is the result of a judicial assault on the Constitution. America’s political process in the decades after its founding, while imperfect, delivered a reconstructed Constitution, voting rights for women, and the civil-rights achievements of the 1960s. America’s tragic failings lie at the feet of the Supreme Court. To right these wrongs, we are due a Third Reconstruction—and with it, a new jurisprudence—that can endure against the current weakness of the judiciary. A new jurisprudence could protect against not only the demonstrated tyranny of the executive, but also the excesses of state legislatures, which now seek to suppress voting rights, deny women reproductive liberty, and strip away protections for LGBTQ Americans. A forward-looking constitutionalism would reflect on the purpose of the Supreme Court, as the constitutional-law scholar Erwin Chemerinsky argued in 2014. It would institute guardrails, such as term limits, to protect against the court’s worst inclinations; enforce a code of ethics to guard against cronyism; expand the lower courts, as President Jimmy Carter did, which provided greater access to justice; and diversify the pipeline of judges such that they reflect broader legal and geographic demographics.

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The founders established the Supreme Court to play a crucial role in upholding the country’s constitutional system of governance. Under Article III of the Constitution, the........

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