A law professor on how the left can articulate a progressive vision of the Constitution.
Dec 18, 2018, 1:10 PM UTC
A man with an American Flag tied around his eyes and holding a copy of the U.S. Constitution sits with demonstrators preparing to march down Broadway on International Workers Day, or Labor Day, on May 1, 2014 in New York City. Spencer Platt/Getty Images
The US Constitution is a deeply flawed document.
As originally written, it institutionalized slavery, counted slaves as three-fifths of a person in the drawing of congressional districts, mandated the return of escaped slaves to their owners, and gave no formal rights to women.
Yet Erwin Chemerinsky, a constitutional law professor at UC Berkeley, argues that the Constitution is a fundamentally progressive document. If you read it closely, he says, you’ll find a clear call for democratic government, justice for all, and political equality.
Chemerinsky’s new book, We the People, is an attempt to defend this interpretation of the Constitution and explain how it can be adapted to a 21st century world. It’s also a rebuttal to conservatives who, let’s be honest, have been more successful than liberals at defining the Constitution in the public imagination.
I spoke with Chemerinsky about how the left can develop and fight for a progressive vision of constitutional law, why “originalism” — which hold that the meaning of the Constitution does not change over time — is a bad judicial philosophy, and why Democrats may need to consider increasing the size of the Supreme Court in the future.
A lightly edited transcript of our conversation follows.
Tell me about the significance of the preamble to the Constitution, which you say is mostly ignored and yet critical to understanding the intent and meaning of the Constitution.
Preambles to constitutions are remarkably revealing. In many countries of the world the preamble makes clear that the constitution is based on religion. In some countries, it’s clear that the constitution is based on heredity, or the monarch, or the rise of power in that way.
The United States Constitution’s preamble begins quite tellingly with the words “We the people,” making clear that it’s a democracy. If one reads the preamble closely, one finds the key values that the Constitution is meant to achieve: democratic governance, effective governance, establishing justice, securing liberty, and of course I would add to that equality.
Can you lay out for me what your progressive vision of the Constitution looks like and what issues or causes align with that vision?
My progressive reading of the Constitution is one that sees it as a vehicle for enhancing freedom and equality. My progressive vision seeks to enhance democratic governance by changing the electoral college, ending partisan gerrymandering, and combating race discrimination in voting.
It seeks to increase effective governance by creating more checks on presidential power, while at the same time empowering government at all levels to deal with social and economic problems. I seek to enhance justice by having the Constitution deal with the problems of police abuse, ensure competent counsel for all criminal defendants, and end the death penalty.
My vision hopes to enhance liberty by providing more protection for privacy, including reproductive autonomy and informational privacy, while in the area of religion preserving a wall separating church and state and not allowing people to harm others in the name of their religion.
My progressive vision of equality would allow disparate impact to be a basis for a constitutional violation, preserve affirmative action, and ultimately seek a constitutional right to food, shelter, medical care, and education for all Americans.
Any time I hear someone referred to as an “originalist” or a “strict constructionist,” it’s invariably a conservative judge. If what you’re saying is true, why is there this popular assumption that to be an “originalist” is by definition to be a conservative?
First, I think originalism, as a philosophy, is wrong. I don’t think we can ever know what the people in 1787 thought the Constitution should mean. Even if we knew what they thought, it has so little relevance to today. If we were truly originalists, then Brown v. Board of Education was wrongly decided, because the same Congress that voted to ratify the 14th Amendment in 1868 voted to segregate the District of Columbia public schools.
Another example: Article 2 of the Constitution refers to the president and the vice president as “he.” The framers clearly intended that they would be men. If we’re originalists, does that mean it’s unconstitutional to elect a woman as president or vice president until the Constitution is amended?
Originalism is a failed method of constitutional interpretation, and even the conservatives use it only when it serves their own purpose. If we were really originalists, it’s clear that affirmative action would be constitutional. The Congress that passed the 14th Amendment adopted many programs that today we would call race-conscious affirmative action.
Yet, when the issue of affirmative action was before the Supreme Court, the originalists, like Justices Antonin Scalia and Clarence Thomas, ignored the original meaning. So I think originalism is a terrible method of constitutional interpretation, and is used primarily by conservatives as a strategy to achieve conservative results.
