Why Amending the Constitution Is the Right Response to the Supreme Court’s Presidential Immunity Decision

Posted in: Constitutional Law

On Monday, July 1, the United States Supreme Court fundamentally altered the constitutional design when it held that the President is immune from prosecution for criminal acts undertaken during the course of their official duties. There is only one way to completely undo the damage done by that decision: amend the Constitution.

Many commentators have rightly called Trump v. United States a kind of constitutional coup d’ état. Those comments are important, but they are not enough.

Instead, we should chart a path toward a constitutional restoration by starting the amendment process. Doing so provides a way to extricate the issue of presidential immunity from a maze of legal technicalities and involve the American people in a discussion of what kind of government they want.

As was the case fifty years ago when the Equal Rights Amendment passed both houses of Congress, a constitutional amendment asserting that the President is subject to the criminal process in everything they do would galvanize discussion and debate across the nation, in town meetings, civic groups, political campaigns, and state legislatures as well as the halls of Congress.

Last week, Rep. Joseph Morelle of New York, the ranking Democrat on the House Administration Committee, started that process. He announced his intention to undo the immunity decision via a constitutional amendment.

While prospects for success in that endeavor are not great, we should not dismiss Morelle’s idea as quixotic. The responses from commentators and political leaders to the Supreme Court’s decision provide ample motivation for us to take Morelle’s idea seriously.

For example, as George Washington University law professor Paul Schiff Berman wrote, “It is difficult to overstate,” Berman argues, “how fundamentally the Trump v. United States decision upends our constitutional scheme and indeed the entire nature of constitutional democracy itself.”

“Whatever one thinks of Trump or the criminal allegations against him,” Berman said, “this opinion…fully empowers an autocratic president to wield the awesome powers of the state…to undertake any action, legal or illegal, with almost complete impunity. By handing the president the keys to the kingdom, the majority may well have hastened the slide of American democracy into autocracy….”

Berman is right to raise the alarm, but unfortunately, he is silent about what those who share his view should do.

Like Berman, Kate Shaw, a University of Pennsylvania law professor, denounced “The Supreme Court’s radical decision…[for] enormously increasing the power and enormously reducing the accountability of the president.” As Shaw sees it, “The opinion itself grants Mr. Trump a more enduring win, and democracy an even more enduring loss: It jettisons the long-settled principle that presidents, like all others, are subject to the operation of law, and announces that all official acts taken by a president are entitled to either absolute or presumptive immunity from criminal prosecution.”

Again, the analysis seems right. But, like Berman, Shaw has nothing to say regarding what is to be done now. In contrast, a few political leaders have tried to identify a path forward.

For example, House Minority Leader Hakeem Jeffries (D-N.Y.) promised that “House Democrats will engage in aggressive oversight and legislative activity with respect to the Supreme Court to ensure that the extreme, far-right justices in the majority are brought into compliance with the Constitution.”

Rep. Alexandria Ocasio-Cortez (D-N.Y.) identified another possible response to Trump v. United States. She said that she would launch impeachment proceedings against the Justices who mounted what she labeled “an assault on American democracy.”

Whatever the merits of Jeffries’s and Ocasio-Cortez’s proposals, they would do little to engage the American people in defending democracy and reaffirming their commitment to constitutional governance. The amendment process offers a much better vehicle for doing so.

Harvard University historian Jill Lapore helps explain why this is the case.

“In 1787, the men who wrote the Constitution,” Lapore argues, “added a provision for amendment—Article V—knowing that changing circumstances would demand revision. To amend meant, at the time, to correct, to repair, and to remedy; it especially implied moral progress, of the sort that you indicate when you say you’re making amends or mending your ways.”

Lapore observes that in the early years of the Republic, “people demanded that their constitutions be revisable, ‘to rectify the errors that will creep in through lapse of time, or alteration of situation’….”

The Framers believed that “No single article of the Constitution is more important [than Article V],” Lapore writes, “because if you couldn’t revise a constitution, you’d have no way to change the government except by revolution.”

However, Lapore acknowledges that, over the long arc of American history, amending the Constitution has “become a lost art.” In fact, “The U.S. Constitution hasn’t been meaningfully amended since 1971.”

At the same time, Lapore documents an extraordinary history of popular activity galvanized by and through the amendment process. Between 1789 and 1949, she says, “almost 9,000 petitions for constitutional amendments were submitted to Congress.”

In addition, “[M]any, many more proposals [have been] made outside of Congress, by everyone from political parties to activist organizations and people posting petitions on Change.org.” And, from time to time, “citizens in every state, from every part of the political and demographic spectrum….Faith, civic, and business leaders – and rising members of a generation tired of our broken system” have been involved in proposing and debating amendments.

Recent history shows that this kind of broad-scale participation in considering constitutional change is not just a thing of the past. Since 2022, when the Supreme Court reversed Roe v. Wade and removed constitutional protections for reproductive freedom, the process of amending state constitutions has activated and engaged citizens all over the country.

The amendment process, whether at the state or federal level, is an important expression of what Larry Kramer of Stanford University calls “popular constitutionalism.” It allows the people to resist judicial supremacy and take “active and ongoing control over the interpretation and enforcement of constitutional law.”

While ordinary people may not find Rep. Morelle’s idea of reversing Trump v. United States through the amendment process as compelling as preserving abortion rights, it still offers an important vehicle for engaging them in resisting yet another exercise of judicial supremacy by our increasingly rogue Supreme Court. That is why the Associated Press rightly calls Morelle’s proposal “the most significant legislative response yet to the [Supreme Court] decisionwhich stunned Washington.”

Morelle has urged his colleagues “to support my amendment and stand with me on the front line to protect our democracy.” I hope they will do so.

But whatever they do, the amendment Morelle intends to propose is a reminder of the wisdom of what Ben Franklin said at the conclusion of the Constitutional Convention in 1787. The Constitution, Franklin observed, gave Americans “a Republic, if you can keep it.”

Considering an amendment to roll back the Supreme Court’s scurrilous attack on the Constitutional Republic gives us all a chance to lend our voices to the effort to “keep it.”

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