Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

Bottom Up Constitutionalism and Some Practical Suggestions

Episode Summary

We begin our second episode on Mike's new book Why the Constitution Cannot Save Us by discussing different ideas of popular constitutionalism, with Mike restating his concern that popular constitutionalism can misdirect our attention from what really matters--whether policies are good or bad--to unproductive discussions of what the Constitution "really" means and Mark restating his sense that the language of "the Constitution" does motivate some people to act in ways they wouldn't otherwise. Then we turn to some suggestions Mike makes in his book about compromises that would become available were we to "deconstitutionalize" policy debates. Mark wonders why some of the proposed compromises would be acceptable to people on both sides and observes that the depth of division today makes pragmatic compromises on issues of deep and divisive principle quite difficult to achieve. Mike then offers some ideas about smaller bore reforms that the Court and Congress could adopt to turn doen the heat of constitutional discussion. Mark observes that those reforms don't seem to have much purchase with either the Court or Congress and we end up agreeing that it might make sense for people like us to work toward changing the composition of the Court and Congress so that those reforms would be not just in the Overton window but actually taken seriously.