Washington Monthly - September/October 2021 - 106

to the battle for an income tax that provided
the financial base for much of the
progressive legislation to come in the
20th century. " The Sixteenth Amendment
ranks among the most significant
progressive achievements in American
history, " according to the authors. " The
income tax made modern government
possible, repudiating the idea of a 'limited'
national government. "
Kowal and Codrington are aware of
the limits of this triumphalist narrative.
As they note, not every effort to
make the Constitution more progressive
has been successful. Proponents
of the Equal Rights Amendment have
yet to push their proposal over the finish
line. Various amendments to reform
or abolish the Electoral College
have also failed. And not all amendment
campaigns
have been progressive.
Conservatives have come close to
passing a balanced budget amendment
through Congress on several occasions,
as many Democrats succumbed to political
pressure. The right has also pushed
for congressional term limits; banning
flag burning and gay marriage; and
overturning Supreme Court decisions
on the separation of church and state.
But critically, and unlike the Constitution's
many liberal amendments, none
of these attempts have succeeded.
This has not stopped right-wing judges
from acting as if they have won. Over
the past 15 years, the Supreme Court has
ruled that Congress cannot compel individuals
to purchase products (the first
Affordable Care Act challenge), that the
government cannot seriously restrict
campaign contributions (Citizens United),
and that individuals have a right to
own guns (District of Columbia v. Heller).
These cases run directly counter to both
the content and historical trajectory of
the Constitution. They effectively ignore
centuries of amendments enhancing the
power of the federal government. With
a newly fortified 6-3 conservative majority,
similarly ahistorical decisions are
almost certainly on the way.
But Kowal and Codrington's book
should provide some hope. Despite long
breaks and substantial frustration, constitutional
history tilts in a progressive
direction. It took multiple decades, but
during and after the New Deal,
liberals
eventually succeeded in forcing the
Court to abandon its Lochner and anti-
civil rights positions. Past judges have
understood the Constitution's malleability,
and future ones may as well. As
Justice Thurgood Marshall once said,
" 'We the People' no longer enslave, but
the credit does not belong to the Framers.
It belongs to those who refused to
acquiesce in outdated notions of 'liberty,'
'justice,' and 'equality,' and who
strived to better them. " The " miracle " of
what came out of Philadelphia, he continued,
" was not the birth of the Constitution,
but its life, a life nurtured
through two turbulent centuries of our
own making. "
Caroline Fredrickson is a Distinguished Visitor
from Practice at Georgetown Law and a
senior fellow at the Brennan Center for Justice.
She is the author of three books, including
The Democracy Fix: How to Win the Fight for
Fair Rules, Fair Courts, and Fair Elections.
AM I OKAY
TO DRIVE?
BUZZED DRIVING
106 September/October 2021
IS DRUNK DRIVING
https://www.nhtsa.gov/
Washington Monthly - September/October 2021

Table of Contents for the Digital Edition of Washington Monthly - September/October 2021
