This premise animates Stacey Abrams’s engaging legal and political thriller, “While Justice Sleeps.” The author is indeed that Stacey Abrams, the Georgia lawyer, politician and organizer who narrowly missed becoming her state’s governor in 2018.
I’ll provide no additional details lest I spoil this fine summer book that you’ll find to be page-turner no matter what your politics are.
But the book highlights an important problem: As a nation, we have lost our constitutional imagination. We have become far too timid about amending our Constitution to deal with new problems and changed circumstances, and also to bring that hallowed document into line with our more egalitarian moral commitments.
A lot has happened since 1788. Consider the story in Abrams’s book. As she noted dryly during a recent interview: “At the time of the adoption of the Constitution, no one anticipated ventilators.”
In the past, we have been willing to make necessary changes in the Founders’ design. This would include the Founders themselves. They altered how the electoral college worked with the 12th Amendment, adopted just 16 years after the original document was approved, because of the mess the country confronted after the election of 1800. (See: “Hamilton,” the musical.)
The Civil War amendments — the 13th, 14th and 15th — ended slavery, provided for equal protection under the law and prohibited racial discrimination in voting rights. (You do wish the current Supreme Court would read that one more carefully.)
The Progressive Era amendments gave Congress the right to levy an income tax, expanded the right to vote to women and provided for the direct election of U.S. senators by the voters.
And in the 1960s and early 1970s, we dealt with a number of other problems by giving the District of Columbia votes in the electoral college, prohibiting the poll tax, establishing that disability provision for the president and extending the right to vote to those 18 and older.
But since then, for a variety of political reasons, we’ve been stuck, unable to have serious debates over how to make our system better through constitutional reform.
Abrams would like to see amendments that rid us of the outdated and anti-democratic electoral college, establish unequivocally that every citizen has the right to vote, and clarify the right to privacy. Let’s think about justices on ventilators, too.
If Abrams’s book should get us thinking more adventurously, so should the efforts of a group of law professors commissioned by the journal Democracy to write a spanking new Constitution for our country. (I have a long involvement with the magazine but had nothing to do with this project.)
Among the new framework’s highlights: a more specific Bill of Rights; a popularly elected president; a more representative Senate, with reduced powers; House members elected for four years through ranked-choice voting; a new legislative chamber for issues affecting Indigenous Americans; and 16-year term limits for Supreme Court justices, who would have less power to invalidate laws passed by Congress.
There’s much more in this new charter worth studying and it’s accompanied by a stimulating symposium. Sanford Levinson, the University of Texas law professor who oversaw the deliberations, offers the provocative observation that we have been engaged in alarmed discussions about the dangers facing our democracy without giving serious thought to whether “an eighteenth-century document . . . has become, quite possibly, a clear and present danger to our national survival in the twenty-first century.”
Even if you don’t want to go that far, it’s hard to disagree with Levinson that aspects of our Constitution (for starters, the electoral college and an unrepresentative Senate) are ticking time bombs that make it harder for our republican democracy to work properly.
Constitutional innovation typically happens at moments of crisis (after the Civil War) or times of rapid social change (the Progressive Era). We’re facing both, so it’s no accident that Abrams’s novel, the Democracy journal project and a forthcoming book by John Kowal of the Brennan Center for Justice and Wilfred Codrington III of Brooklyn Law School, “The People’s Constitution,” are all pushing us toward a new inventiveness.
One piece of good news: Avery Keene, the brilliant law clerk who is the hero of Abrams’s book, is scheduled to return in another tale in 2022. I don’t think Abrams would mind if we made her job as a novelist a little harder by dealing with some of the problems that made Avery’s life so interesting the first time around.