A Constitution for everyone, if you can keep it (review)


“We the People: A Progressive Reading of the Constitution for the Twenty-First Century”
By Erwin Chemerinsky
Picador, 2018; 265 pages

“We the people, in order to form a more perfect union,” begins the Preamble to the United States Constitution, before going on to briefly list the goals of the Constitution and the government it empowers. 

In total, the Preamble is just 52 words long, and yet it covers the principles the nation has been trying and often failing to live by ever since. 

It’s second only to the Declaration of Independence in terms of its familiarity — and, if you grew up watching “Schoolhouse Rock!” cartoons, you may still be able to sing the Preamble to a rousing melody.

Still, the federal courts do not hold the same affection for the Preamble. 

Down by law

In a 1905 decision, the Supreme Court of the United States ruled that laws cannot be declared unconstitutional based on their divergence from the Preamble, and the Preamble has been cited only rarely in Supreme Court opinions ever since. 

In “We the People: A Progressive Reading of the Constitution for the Twenty-First Century,” Erwin Chemerinsky, dean of the UC Berkeley School of Law, makes a convincing argument that the courts have got this wrong. 

“The Preamble is much more than the opening statement of a constitution establishing a government,” he writes. “It describes the core values that the Constitution, and the government it creates, seeks to achieve democratic governance, justice and liberty.”

The author of more than a dozen books, Chemerinsky is one of the most important voices for a liberal interpretation of the Constitution today. National Jurist magazine has called him the most influential person in legal education. 

At a time when Mitch McConnell’s Senate has packed the federal judiciary with deeply conservative judges who will no doubt block progressive policies for many years to come, Chemerinsky makes powerful arguments for the Constitution as not an impediment to change, but as a progressive instrument of social justice. 

In promoting the importance of the Preamble, Chemerinsky isn’t just making a pitch to “Schoolhouse Rock!” fans. He is trying to break through an impasse in constitutional interpretation. 

Dead wood or living document

Conservatives argue that the meaning of the Constitution was fixed at the time it was written, that liberals are acting as “activist judges” when they try to apply 21st century values to documents more than 200 years old — and that, therefore, the only proper way to interpret a provision of the Constitution is by understanding the original intent of its authors at the time they wrote it.

But as Chemerinsky and other liberal scholars have argued, it is probably not a coincidence that 21st century conservative justices routinely seek the original intent of the framers of the Constitution — only to find that it fits neatly with the views of 21st century conservative justices.

Chemerinsky writes: “I am not saying that conservatives engage in political activism, while liberals practice judicial restraint … My point is that all justices — liberals and conservatives alike — inevitably must make value choices. No method of Constitutional interpretation, including originalism, can avoid that. The only difference is that conservatives pretend they are doing something different.” 

In his slim, informative and engaging book, Chemerinsky finds a way around this problem. 

“If constitutional interpretation should be based on achieving the underlying values of the Constitution, where are these values to be found?” he asks. “The place to start is with the Preamble, which articulates the purposes of the document.”

Actually original intent

In Chemerinsky’s view, the Preamble’s famous opening phrase “We the people” shows that the framers intended to create a democratic system in which everyone has a voice, even if it took 130 years before women secured the right to vote nationwide. 

“In order to form a more perfect union” establishes that this democracy should change over time as it adapts to new realities and improves the quality of governance when problems make themselves known. 

The history of constitutional law in the United States is a slow, halting, but ultimately forward march toward living up to the principles of the Constitution, as expressed in its Preamble.

To conservatives, this no doubt sounds like merely replacing one bias with another. 

Yet Chemerinsky ably shows how a liberal interpretation is just as rooted in the text of the Constitution itself as is a conservative interpretation — if not more so. 

And, as he argues, that’s especially true if you take the Preamble seriously.

Chemerinsky is not naive about the challenges progressives face if they want to build a Supreme Court where constitutional interpretation supports justice, equality, democracy and other values they hold dear. Those challenges have never been more obvious than they are today. 

But he makes a compelling case for his interpretation of the Constitution, and a strong argument that progressives can win.

%d bloggers like this: