ABSTRACT

It is indeed time to rewrite the Constitution, but not for the purpose of expanding the government’s power to control expression. We should rewrite the Constitution in order to re-right American democracy. When the Supreme Court shrinks our civil rights by misinterpreting a federal statute, Congress can go back and amend the law to restore the original meaning, something it has done frequently in the new age of judicial reactivism. In 1982, for example, Congress amended the Voting Rights Act to make clear that the Act legislates an “effects” test for discrimination against minorities in voting and not an “intent” test, as the Court had misconstrued it in Mobile v. Bolden.2 In 1991, Congress amended the 1866 Civil Rights Act to overturn the Supreme Court’s pinched and narrowing construction of the statute in Patterson v. McClean Credit Union (1989), which found race discrimination in the performance of contracts (as opposed to their formation) to be outside the scope of the statute.3 Practically speaking, the Court then has no choice but to live with congressional acts “overruling” its prior squinting construction of federal civil rights laws.