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THE SUPREME COURT DOESN’T OWN THE CONSTITUTION  
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Jamelle Bouie
June 10, 2026
The New York Times
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_ In past eras of American politics, the people, through their
representatives in Congress, have shaped and settled constitutional
meaning, rebuking the court when it overstepped its role as a
legitimate actor. _

, Aleksey Kondratyev for The New York Times

 

It is the job of the judiciary, as Chief Justice John Marshall
famously wrote, to say what the law is.

Often, this is taken to mean a duty to interpret the Constitution and
fix its meaning in place. But to say what the law is and to say what
the Constitution means are two different tasks. The law concerns cases
and controversies — the application of past precedent and broad
principles to present circumstances.

Constitutional meaning is more abstract. It deals with the shape and
structure of our political community. And as much as courts help build
our collective constitutional understanding, the question of meaning
is as much the purview of the public as it is the job of a jurist.

It is only in the last half-century, in fact, that we have fully
conflated legal decision-making with the production of constitutional
meaning. The result, as the legal historians Nikolas Bowie and Daphna
Renan have written in these pages
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is a strong form of judicial supremacy, where the meaning of the
Constitution and therefore the structure of our political community
are fixed in place by the decisions of a small, cloistered and often
self-interested tribunal.

In past eras of American politics, the people, through their
representatives in Congress, have shaped and settled constitutional
meaning, rebuking the court when it overstepped its role as a
legitimate actor. The paradigmatic example is the reaction to the
Supreme Court’s decision in Dred Scott v. Sandford in 1857, when the
Republican Party organized itself around opposition to that decision
and fought to invalidate and overturn it through legislation and
constitutional reform. “Members of an ascendant Republican Party
decried a court ‘inflated with supremacy’ and declared that
whenever a decision is, ‘in the judgment of Congress, subversive of
the rights and liberties of the people,’ it is the ‘solemn duty of
Congress’ to override it,” Bowie and Renan observe.

But there are other sources of constitutional meaning beyond
legislatures and electoral politics. It is worth remembering that the
Constitution was neither ratified by the Confederation Congress nor
state legislatures nor the secretive committee that drafted it in
Philadelphia. It was ratified by state conventions assembled from a
broad part of the public — or at least as broad as they could
imagine in 1787 — that were meant, as much as was possible, to
instantiate the people as a sovereign whole.

The Constitution was not written as a democratic document. But the
Revolution unleashed a spirit of democracy that structured the way
Americans understood the document before them and shaped its
implementation at the hands of their elected representatives.

This public exercise in constitution-making, which is to say the
making of constitutional meaning, did not end with ratification in
1788. Nor did it end with the passage of the Bill of Rights in 1791.
In addition to the constitutional debate and disagreement that marked
the practical politics of the first decades of the American Republic,
there was the convention as a political institution, which survived as
a vehicle for constitutional argument and for shaping the larger
constitutional landscape. The most consequential of these conventions
linger in our historical memory: the secession conventions where
slaveholders debated the meaning of the Union and the decision to
separate, and the Seneca Falls Convention, where delegates resolved to
integrate a vision of women’s equality into the constitutional
order.

But some of the most influential conventions in American history are
well off the public radar. These are the Colored Conventions —
gatherings of Black Americans held throughout the 19th century,
beginning in the 1830s and ending in the 1890s. It was in these
conventions that Black Americans, either born free or formerly
enslaved, articulated a constitutional vision of their own. That
vision would go on to play a critical role in the constitution-making
of the Civil War and Reconstruction.

To read the minutes and resolutions of these conventions is, in fact,
to see these Black Americans articulate a broad-minded and ambitious
democratic egalitarianism. “Resolved,” reads the “Declaration of
Sentiments” of the 1848 Colored National Convention in Cleveland
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— Frederick Douglass served as its presiding officer — “That we
shall forever oppose every action, emanating from what source it may,
whether civil, political, social or religious, in any manner
derogatory to the universal equality of man.” They committed
themselves to the immediate end of slavery, which they described as
“the greatest curse ever inflicted on man, being of hellish origin,
the legitimate offspring of the Devil.” The delegates also declared
their belief in the “equality of the sexes” and resolved to
“invite females hereafter to take part in our deliberations.”

Ten years later, at the Suffrage Convention of the Colored Citizens of
New York [[link removed]], in
Troy, delegates condemned the Dred Scott decision as “an impudent
and atrocious attempt to extend and perpetuate the blasting curse of
human bondage,” declared that slavery is “the common enemy of
man” and that all who “subscribe to the theory of human rights set
forth in the Declaration of Independence ought to trample, in
self-defense, the dicta of Judge Taney beneath their feet as of no
binding authority.”

In a forthcoming article, the legal scholar David H. Gans examines
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conventions of the 1860s in particular as an especially heightened
moment of constitutional politics, where Black Americans “repeatedly
pressed white Americans to make the United States into a multiracial
democracy that guaranteed fundamental rights, protection and equal
citizenship as an American birthright.” The 13th, 14th and 15th
Amendments that followed would, in Gans’s telling, bear “the
imprint of this constitutional activism.”

It is striking to read the demands of these Americans. “We want the
elective franchise in all the states now in the Union, and the same in
all such states as may come into the Union hereafter,” reads the
official address of the 1864 National Convention of Colored Men
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to the “people of the United States.”

“The possession of that right,” it says, “is the keystone to the
arch of human liberty: and, without that, the whole may at any moment
fall to the ground; while, with it, that liberty may stand forever.”

At the Colored People’s Convention of South Carolina
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of 1865 — held in Charleston, the heart of the secession movement
— delegates cloaked themselves in the words of the Declaration of
Independence and called on their white fellow citizens to recognize
“the truth that ‘all men are endowed by their creator with
inalienable rights,’ and that on the American continent this is the
right of all, whether he come from east, west, north or south; and,
although complexions may differ, a man’s a man for a’ that.”

And at the Alabama Colored Convention of 1867, delegates condemned
racial prejudice and demanded equal enjoyment of political and social
rights: “Color can no longer be pleaded for the purpose of
curtailing privileges, and every public right, privilege and immunity
is enjoyable by every member of the public.”

Gans shows that the work of these conventions was known to Republican
lawmakers. He writes that in “the period Congress was considering
making far-reaching changes to the Constitution to ensure freedom and
equal citizenship for Black Americans, Republican senators, usually
Senator Sumner
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introduced into the congressional record petitions from the Alabama
Colored Convention of 1865, the Mississippi Colored Convention of
1865, the Florida Colored Convention of 1865, the National Equal
Rights League Convention of Colored Men of 1867, the Kentucky Colored
Convention of 1866, the Georgia Colored Convention of 1868, along with
countless petitions from groups of Black citizens.”

These petitions deeply influenced the work of the Reconstruction
Congress, as Black ideas about the meaning of the Declaration and the
Constitution made their way into both the Reconstruction and
legislation like the Civil Rights Acts of 1866 and 1875. It almost
goes without saying that the organized political activity of Black
Americans in the South played a critical role in ratifying those
amendments as well.

To look at the long history of the Colored Conventions is to see a
potent example of the power of ordinary Americans to interpret, shape
and change the Constitution for themselves. The work of these men and
women — some famous, others far less so — is a reminder that we
need not wait for politicians and judges to build a new constitutional
world. We can articulate our vision of the political community and
work to make it a reality using whatever means are at our disposal.

Americans have lost the habit of constitutional thinking. The muscle
is weak — degraded from decades of neglect. The convention movement,
and especially that of the Colored Conventions, is a model for how
Americans might start to work themselves back into shape, and prepare
for the moment when the possibility of constitutional change moves
from idle fantasy to concrete reality.

Put another way, we tend to relate to our politics the way we relate
to everything else in this country: as consumers who pick from a set
of predetermined choices. But if we hope to recover and revitalize our
democracy, we must start to think as _citizens_ with duties,
obligations and the sovereign power to make our world anew.

_JAMELLE BOUIE - I write about politics and the law through the lens
of American political history. I believe that history can help us ask
good questions about our present circumstances, and I am deeply
interested in our nation’s moments of structural political reform,
from its founding to Reconstruction and into the New Deal. I am also a
close reader of American political theory and bring to my writing the
influence of a broad range of thinkers, observers and practitioners.
More than anything, I hope readers come away from my work having
learned something new and useful about the nation’s history._

_My first job in journalism was at The American Prospect magazine,
which I joined in 2010, not long after graduating from the University
of Virginia. I covered politics at The Prospect for several years
before joining The Daily Beast and then moving on to Slate magazine,
where I spent five years as a politics writer and, later, chief
political correspondent. I joined The Times in 2019. I live in
Charlottesville, Va., with my wife, kids and a dog._

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* law
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* Constitution
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* Supreme Court
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* Politics
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* Congress
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* democracy
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* conventions
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* Black Americans
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* U.S. history
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* 13th amendment
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* 14th amendment
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* 15th amendment
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* Reconstruction
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