Is That Even Constitutional?

Higher education has become a necessity for social and economic mobility in our society. This is particularly important for minority groups seeking to access the mainstream of American society. In 2023, however, the Supreme Court held in Students for Fair Admissions v. Harvard that student admission policies at public universities that benefit minorities violate the Equal Protection Clause and cannot include affirmative action to increase the diversity of a school’s student body. The same reasoning applies to private schools under the equal protection provisions of the Civil Rights Act of 1964.  Because admissions at private schools, including the Ivy League, are bound by civil rights law, not the Constitution, Congress could amend these statutes to again allow race to be considered for admissions.

According to the Centers for Disease Control and Prevention (CDC), nearly 47,000 people died of gun-related injuries in the United States in 2023. Despite this litany of violence, gun control in the United States has become far more difficult. In 2008, the Supreme Court drastically reinterpreted the Second Amendment in District of Columbia v. Heller. Since then, the Court has enthusiastically expanded this newly discovered doctrine to strike down gun regulations. Congress, however, still has the ability hold gun sellers and manufacturers liable for gun violence.

In Citizens United v. FEC, the Supreme Court took individual free speech rights and added an ahistorical addition - giving these rights to corporations. The idea that such a fundamental right should be extended to corporations is nonsensical. Speech is not a property right and there is no reasonable argument that corporate speech is a reflection of the speech of its shareholder. Congress, however, can pass a law prohibiting corporations from funding political speech without the permission of their shareholders.

In 1965, the Supreme Court held in Griswold v. Connecticut that the Constitution protected the right of families to use contraception. In 1973, the Court in Roe v. Wade extended this right to decisions to terminate a pregnancy. When Roe was overturned fifty years later in Dobbs v. Jackson Women’s Health Organization, this not only affected abortion rights but threatened access to contraceptives and fertility treatments. Justice Clarence Thomas, writing in concurrence, explicitly called for the Supreme Court to overturn Griswold and remove the remaining constitutional protections for reproductive decisions. Federal legislation could be passed, however, to protect contraception and restore protections for abortion.

There is a deep irony that the U.S., long a leader in the promotion of democracy, offers no national representation for residents of its own capital. No other country in the world deprives the citizens of their capital of the right to vote. Denying the vote in Washington, D.C. only exacerbates the long-standing history of disenfranchising of black voters. It's time for this injustice to be rectified.

Supreme Court Justices are appointed for life, making the Supreme Court one of the least democratic institutions in the world. Even worse, the Court now plays a political role unforeseen by the Founding Fathers. No other country has this problem. America is alone among modern constitutional democracies in allowing their high-court justices to serve without terms or age limits. Legislation has been proposed to impose term limits on Justice without amending the Constitution by assigning Justices to other judicial roles. This would go a long way toward solving current public dissatisfaction with the modern Court.

The American people are frustrated with the American election system. As a result, the United States ranks 138 out of 172 nations in voter turnout. One of the biggest reasons that working adults don’t vote is that they are too busy. Standing in long lines before morning commutes, leaving during workday to travel to assigned polling stations, or putting off family duties to reach the polls after work are luxuries many people can’t afford. Because of this, sixty-five percent of Americans are in favor of making Election Day a national holiday. 

Gerrymandering is widely regarded as a distortion of the democratic process. Gerrymandering refers to any deliberate manipulation of electoral boundaries to favor one political party or group. These methods can dramatically skew election outcomes despite little change in overall voter preference. The Supreme Court has declined to review political gerrymandering by states. Congress, however, has the authority to end gerrymandering by requiring that congressional district boundaries be drawn by independent commissions.

Democracies around the world only require a simple majority (above 50%) to pass legislation. The filibuster, which requires approval by 60% of the Senate, makes that chamber the most anti-democratic in the world. If Senators supporting a filibuster are from low population states, they could represent as few as twenty percent of Americans.  So, in our democracy, the vast majority of Americans can deeply desire a piece of legislation, but the remaining portion of the population can kill it. The only way to stop this injustice is to eliminate the modern filibuster.

For the upcoming 2026 mid-term elections, serious congressional candidates need to consider a change of approach. Rather than struggling to resolve divisive ideological issues, candidates need to pick common governing themes that are not only broadly popular but also immune to attack. PROJECT 2026 describes ten legislative proposals that all congressional candidates should agree to.