We Need a New Constitution

On June 30, capping off a controversial term, the Supreme Court issued a decision severely limiting the authority of the Environmental Protection Agency (EPA) to regulate greenhouse gases.

The court didn’t eliminate the ability of the executive branch to take climate action; there still are a wide range of things Biden can do to slash greenhouse gas emissions. However, the court clearly intended to limit the ability of the federal government to regulate corporations. 

The court narrowly focused on the EPA’s authority to limit emissions from electric power generation facilities in a manner that effectively requires the facilities to transition from burning fossil fuels to a different technology. But it relied on the argument that, on issues with (undefined) ​“major” economic or political impacts, new regulations by executive branch agencies require explicit authorization from Congress. 

This logic seriously limits the federal government’s power to bring about systemic shifts, in two different ways. 

First, to make anything other than incremental changes to the status quo, Congress must pass volumes of extremely detailed legislation, and keep updating the legislation regularly to keep up with changes in technology, the economy, and more. The practicality of it aside, it’s a non-starter in the current political reality in Congress.

Second, wherever the underlying statutory authority from Congress is lacking in detail or outdated with regard to scientific knowledge or technological advances, executive branch agencies are severely limited in their ability to extrapolate or fill in the gaps.

And when the government cannot make systemic shifts, it cannot take on corporate power. Ultimately, this isn’t just an issue of climate policy or regulation. It’s an issue of democracy itself — and the structures of our federal government that undermine it.

Unaccountable courts

To understand the origins of a court decision that unabashedly sides with corporate power, we need to look at how this Supreme Court in particular was formed, and at the federal judiciary in general.

Five out of nine justices who were part of the 6-3 majority in the West Virginia vs. EPA ruling were appointed by presidents who had lost the popular vote. Justices John Roberts and Samuel Alito were appointed by George W. Bush (who received half a million fewer votes than Al Gore in the 2000 presidential elections), and Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were appointed by Donald Trump (who received almost 3 million fewer votes than Hillary Clinton in 2016). 

This is a feature, not a bug. U.S. presidential elections are decided by the arcane electoral college system, which is expressly designed to act as a brake on the popular will.

Once justices are appointed by a president, they’re confirmed by the Senate — a legislative body that’s unrepresentative by design, because it has exactly two senators from every state, in spite of vast differences in population. The two senators from California represent 39.2 million people, while the two from Wyoming represent only 579,000.

Overrepresentation of some people and underrepresentation of others is written into the Constitution, contrary to the fundamental democratic principle of equal representation of all citizens.

So, nine individuals are appointed to lifetime terms by one individual elected by a convoluted system that can bypass the popular will, and confirmed by an elected body structured to provide about 68 times more representation to people in Wyoming than people in California. This body of nine unelected individuals can make profound (often deeply unpopular) changes to law with zero accountability.

The federal judiciary as currently structured has no place in a functional democracy. Nor do the Electoral College and the U.S. Senate.

Corrupt legislatures

Compounding matters, this already compromised electoral system is awash in money, much of it from corporations and wealthy donors. Even though donations from small donors tripled between the 2016 and 2020 elections, they still amounted to barely more than a quarter of funding for federal election campaigns.

Much of this political money flows through structures designed to hide the source of funds — hence the term ​“dark money.”

Pertinent to the West Virginia vs. EPA case, the oil and gas and electric utility industries have made respective political contributions of $119 million and $112 million to date in the current election cycle. Anyone who’s under the illusion that beneficiaries of political money aren’t in any way influenced by it should consider an obvious fact: Businesses don’t just hand out massive sums of money with no strings attached.

The top recipient of oil and gas money during the current election cycle is none other than Sen. Joe Manchin (D​-​W​.Va.). He doesn’t just receive campaign money from the industry — he personally owns and profits from a pair of coal companies.

He’s also (dis)credited with being a key architect of legislation that provided billions in new fossil fuel subsidies for carbon capture and hydrogen from fracked gas, and the one main impediment to passing legislation providing meaningful incentives to renewable energy.

Most recently, Manchin has negotiated a climate deal with Senate Majority Leader Chuck Schumer (D-N.Y.) that likely locks in years of offshore oil and gas production, greenhouse gas emissions, and harmful pollution impacts on coastal communities. It also doubles down on unproven, harmful emissions reduction technologies such as carbon capture and storage, which allow the fossil fuel industry to keep polluting while pretending to address emissions.

Effectively, Manchin uses his position as the Chair of the Committee on Energy and Natural Resources to pass legislation to enrich himself and block legislation that threatens his business interests, and the fossil fuel industry throws in generous bribes as added inducement for him to push the industry’s agenda. 

So, when the Supreme Court rules that only explicit legislation can authorize the EPA to regulate greenhouse gasses, they’re shifting responsibility to a branch of government that they know is paralyzed by corporate corruption.

They know it because they helped create this state of affairs. Congressional corruption is an inevitable consequence of misguided Supreme Court rulings equating corporations with people and campaign money (or, dispensing with the polite euphemism, bribes) with speech.

Manchin’s role in U.S. energy policy is a textbook example of corruption, yet it’s completely normalized by our establishment. Schumer hasn’t shown the slightest inclination to remove Manchin from his perch as committee chair, let alone start an ethics investigation into his obvious corruption. 

A new constitution

Our political system is intentionally structured to allow the government to be unrepresentative and unaccountable. The only long-term solution is to transform our system of government to be truly accountable and democratic by creating a new constitution. 

A document written by eighteenth-century colonizers and enslavers, some of whom were more concerned about preserving the power of what James Madison called an ​“opulent minority” than about government being accountable to the majority of the governed, has clearly outlived any use it ever had.

At a minimum, a new constitution needs to abolish the Senate and the Electoral College, provide for election of a president by a national popular vote, require that legislative districts be created by non-partisan commissions, greatly expand the size of the federal judiciary, set term limits for federal judges that are comparable to terms of elected officials, and limit the power of the judiciary to overrule decisions by elected bodies. 

And it needs to explicitly ban the legalized corruption that characterizes our current political system.

Obviously, a new constitution doesn’t appear out of thin air. It requires creative thinking and visionary movement-building. We need to shed U.S. arrogance and look outside this country for models, such as the youth-led movement in Chile that has elected a young leftist president and crafted a constitution befitting the twenty-first century. That constitution still needs to be approved by Chilean voters in a referendum, but it can start serving as a model for us now.

None of this is easy. But all of it is essential if we’re to have a serious shot at defeating rising fascism, addressing the climate emergency, reversing the evolution of the U.S. into a corrupt oligarchic state, and creating a truly democratic system of government.