Why America Has Two Constitutions

As a result of Supreme Court rulings, which often appear to have been arrived at based on ideological motives, American citizens are now living under a constitution that is significantly different from the Constitution created by our Founding Fathers with affixed constitutional amendments as constitutionally passed by Congress.

The original Constitution, as written by our Founding Fathers, consists of approximately eleven pages with an additional eleven pages of amendments passed by Congress.

Since its creation, the Supreme Court has, right or wrong, adjudication 30,863 cases filed questioning the Constitutionality of laws, statutes, and lower court rulings, as published in the official United States Reports. Right or wrong, Supreme Court rulings have bloated our constitution into a document consisting of tens of thousands of pages. The actual number of pages is debatable; however, it is safe to say that the number would be substantial given the number of cases that the Supreme Court has heard over the years. Many interpretations led to rulings, which on the surface, appear to have been made based on what the Justices ideologically believed to be in the best interest of America and its citizens and not on what the Founding Fathers intended.

What happens when the Supreme Court gets it wrong?

Misguided court decisions have altered the path of our nation in sadly noticeable ways and this question arises again and again after sharply divisive rulings are made by the court. The short answer is that not much can be done. In the American judicial system, an edict from the high court is almost uniquely without a check or balance. When justices err, the people suffer the consequences (Political Magazine).

The only corrective course is the high court itself, as future generations of justices reconsider once-settled doctrines. But problems often get worse before they get better because Supreme Court errors are rarely one-offs. When a cabal of justices goes astray, they tend to keep on going. Mistake follows mistakes, and the boundaries of American freedom get squeezed.

As of 2023, the Supreme Court has overruled more than 300 of its cases (Struyk, Ryan - September 2018). A very small sample of cases that the Supreme Court got wrong and subsequently overturned their ruling are:

         Dred Scott decision (1857) which was a legal case in which the U.S. Supreme Court 
         ruled 7 to 2 on March 6th, 1857, that a slave who resided in a free state or territory was 
         not thereby entitled to freedom; that African Americans were not and could never be 
         citizens of the United States. (Encyclopedia Britannica) 

         Plessy v. Ferguson (1896), which upheld racial segregation, overruled by Brown v. Board
         of Education (1954), which declared segregation unconstitutional.

         Lochner v. New York, (1905), which invalidated a law limiting working hours, overruled
         by West Coast Hotel Co. v. Parrish (1937).

         Adler vs Board Of Education (1952) was one of many cases in which state statutes barring members of "subversive" organizations from public employment were upheld on the basis that public employment was a privilege and not a right. The 6-3 decision rejected assertions that the state statutes violated the First Amendment freedoms of speech and assembly. This decision was effectively overruled by the Keyishian vs Board of Regents in 1967.

         Baker v. Nelson (1972), which dismissed a challenge to a ban on same-sex marriage,
         overruled by Obergefell v. Hodges (2015), which legalized same-sex marriage
         nationwide.

         Roe v. Wade (1973) which established a right to abortion, partially overruled by Planned Parenthood of Southeastern Pa. v. Casey (1992), which upheld some restrictions on
         abortion. Roe v. Wade was overturned in its entirety in 2022 and turned over abortion 
         decisions to the individual states to pass state abortion legislation based on the majority 
         of its citizens expressed desires.

         Bowers v. Hardwick (1986), which upheld a ban on sodomy, overruled by Lawrence v.
         Texas (2003), which struck down the ban as a violation of privacy.

There remain hundreds if not thousands of Supreme Court rulings that merit readdressing because of their constitutional questionability. The Constitution of the United States has become so expansive that it requires constitutional scholars and lawyers to interpret the Constitution as it now exists. It is no longer the clean straightforward conservative decree crafted by our Founding Fathers.