APRIL 3, 2019
THANK HEAVEN for Erwin Chemerinsky. The dean of constitutional law has done it again; his latest book, We the People, really is his finest work. In his usual clear and concise fashion, Chemerinsky gives us a framework for understanding both the United States Constitution and the current threats to our democracy. This book could not have come at a better time. It is a life preserver for those who feel adrift in the uncharted waters of the Trump era.
I have ridden the seas with Chemerinsky. Every summer, I attend what you might call “constitutional law summer camp.” Together with a few other constitutional scholars, a group of us create a “Supreme Court in Review” video for the Federal Judicial Center. For 20 years, this program updates federal judges and their staff on new developments at the Court.
Not surprisingly, Chemerinsky is our fearless leader. With his encyclopedic knowledge of constitutional law, he patiently guides us as we try to interpret the Supreme Court’s latest decisions. It has been an experience that has molded all of us. Working together, we have been able to detect both subtle and abrupt changes in the law. Chemerinsky never takes credit for his many contributions, but his insights are invaluable.
Now, he has made his most important contribution of all. Through his new book, he shows us how these cases start to fit together. With We the People, even a non-lawyer can begin to see the forest for the trees. And, the picture that begins to develop is not pretty. Chemerinsky provides both a coherent way to interpret the Constitution and a startling portrait of the recent assaults upon it.
Name the hot-button issues in constitutional law: gun control, union speech, separation of church and state, access to the courts, campaign finance, abortion, the right of privacy, equal justice. They are all discussed in the book. However, most importantly, they are addressed in a way that outlines a path for progressives to use the Constitution to protect these rights.
Perhaps surprisingly, We the People begins with the Preamble to the Constitution. Though the Preamble might seem to be an obvious starting point, Chemerinsky points out that this critical part of the Constitution is often ignored. I had excellent constitutional law professors in law school. I have been to countless speeches on the Constitution. But not once have I heard a speaker focus on the Preamble. It is often treated as a piece of constitutional fluff that simply sets forth the historical context for the actual Articles of the Constitution.
Yet, as Chemerinsky posits, “Justice, Tranquility, Common Defence [sic], General Welfare, and Liberty” are the most basic principles of our democracy. They offer us a path out of the wilderness in which we find ourselves with the current fight over civil rights. Part of Chemerinsky’s genius is his ability to simplify concepts that others have often complicated when trying to justify their conservative agenda. They may be textualists, but only when it comes to pointing to text that, when taken in context, provides a very different message.
Don’t get me wrong. Chemerinsky’s argument is not subtle. He acknowledges at the outset of his book that we are witnessing an unprecedented battle between conservatives and progressives. With the replacement of Justice Anthony Kennedy (the Court’s swing vote for the last decade) by controversial Justice Brett Kavanaugh (whose very confirmation hearing laid bare ongoing problems in the United States), the ideological balance of the Court has tilted decidedly toward the conservatives. Basic rights hang in the balance, including free speech and the right of choice. Given that Trump might be able to appoint even more conservatives, the future could be gloomy for progressives unless a solid foundation is created to repel ongoing attacks on constitutional rights.
Chemerinsky has a two-part plan. First, expose conservatives for what they are doing, or, more precisely, what they are not doing — i.e., not basing their decisions on actual constitutional law. Second, use the Preamble to construct a narrative in which civil rights can thrive.
Chemerinsky jumps in early with his criticism of conservative judges. Chapter two is aptly named, “The Conservatives’ False Claim of Value-Neutral Judging.” He takes on the so-called strict constructionists by noting how farfetched their position is. How can we pretend that the Framers directly addressed issues in today’s technological era when such technology did not exist at the time the Constitution and Bill of Rights were adopted? Jefferson and Madison never played a video game. Their every movement was never followed by a GPS tracker. Even issues like gun control and elections have morphed so much since our country’s founding that it is inevitable that conservatives and liberals alike make value choices in constitutional decision-making.
If we are going to do that — and Chemerinsky makes a compelling argument that we do so every day — then we need to recognize what basic values the Framers were trying to preserve. In that way, “the Constitution must be regarded as a living, not a dead, document.” Chemerinsky reminds us that we do not need to look far to determine what basic values are at the foundation of our nation.
In the beginning … there was the Preamble. In framing the Constitution, the Preamble starts with the words “We the People.” This is key. The people are sovereign. Look around. If you feel threatened by the power of the government, so did the Framers. The Framers were committed to a democratic, effective form of government (although, of course, that vision was not extended to all Americans in their day). They wanted a government that had fair processes and protected individual freedom. They would presumably recoil at the current state of affairs where the federal government is shut down because the executive branch is fixated on using its powers to bypass the normal legislative process. They would not only ask whether the president has the “power” to do so; they would ask what is the best course for securing the liberty, domestic tranquility, common defense, and general welfare of our nation.
Ensuring democratic government may mean reevaluating traditional institutions that no longer serve the commitment to democratic government. This would mean that the Electoral College should be on the chopping block. As Chemerinsky notes, “the Electoral College is inconsistent with the core constitutional value of democratic governance.” So is the pernicious nature of gerrymandering and voter suppression.
When it comes to providing effective governance, we continue to struggle not only with the contest between the legislative and executive branches, but also with the issues raised by federalism. Today, the “Federalists” are identified with those who support states’ rights to reject providing certain services for its citizenry. If a state does not want to allow its women to have abortions, so be it. If a state wants to deregulate its employment laws, that is its right. However, as Chemerinsky points out, what is seen as a state’s “right” is actually a constitutional “wrong.”
In the early 20th century, federalism was successfully used as a basis to challenge federal laws that precluded child labor and to enhanced social welfare by embracing consumer protection laws, guaranteeing a minimum wage, and establishing Social Security. Today, activist conservative courts have returned to the repudiated jurisprudence of states’ rights. Progressive ideals have been thrown under the bus amid the rhetoric of federalism.
Most seriously, the democratic ideal of government that is based on a separation and balance of power among the three branches of government is being challenged. The cry for a “unitary executive” is actually a power grab. The Trump presidency provides Chemerinsky with a bevy of examples that paint a disturbing picture of what is happening in our nation. For example, the president’s attempt to impose a ban on Muslims entering the United States was an unabashed attempt to flex executive muscle; the Supreme Court, in Trump v. Hawaii, allowed the president to do so.
By using the Preamble, Chemerinsky also sheds light on the problems in trying to “establish Justice” in our current criminal justice system. Establishing justice requires able and resourced adversaries on both sides of each case. Providing competent defense counsel is not a luxury; it is the bedrock of what is required to establish justice. Even if defendants do not have popular support, they have constitutional support. Courts should recognize that reality whenever evaluating rights that arise in criminal appeals.
And then there is the Second Amendment. It is hard to say more than that District of Columbia v. Heller was wrongly decided. The majority ignored the prefatory language of the Second Amendment, which refers to the right to have guns if you are in the militia. If conservatives are going to rewrite the Second Amendment, the least they could do is recognize the right of the people to secure liberty. This does not mean just the right of gun owners to stockpile weapons. It means the right of others to be free from the increasing carnage wrought by gun violence.
Finally, Chemerinsky focuses on the two areas of constitutional rights that he predicts will be under even greater assault in upcoming years — the rights of privacy and of religious freedom. Many issues fall under the heading of “privacy,” but the one that readily comes to mind is the right of choice. As conservatives count the votes to overturn Roe v. Wade, liberals must formulate an argument about why the right to choose an abortion belongs to the woman, and not to the state. This is an issue of liberty for which the Preamble can be used.
Similarly, securing liberty can inform judicial decisions in cases challenging the separation between church and state. In recent years, the free exercise of religion clause of the First Amendment has been used to diminish other Americans’ rights. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the rights of a gay couple to marry took second place to a cakemaker’s religious view that same-sex marriage is an abomination. Conservative politicians are also making a push to provide more government support for religious institutions. The Supreme Court has even held that for-profit corporations have religious beliefs that must be upheld. These decisions undermine efforts to achieve equality and secure liberty for all Americans.
These are but a few examples of how Chemerinsky ably uses the Preamble to direct our discussion of constitutional rights. Other key issues are discussed, including racial discrimination and affirmative action. The Preamble states, “all men are created equal.” At the time the Constitution was ratified, this did not include women, African Americans, or Native Americans. Today, unquestionably, it does. “We the People” provides a roadmap for moving toward equality. We will need to rethink decisions that require those challenging discriminatory laws to show that their discriminatory effect was intentional. The legal hurdle of proving discriminatory purpose has undermined efforts to achieve equality. Implicit bias research has taught us that decision-makers might not even know when they are discriminating. The time is ripe for seeing old constitutional fights in a new light — the light of the Preamble.
Chemerinsky has written a powerful book that is accessible to both those steeped in constitutional law and those just searching for answers. Law students are always looking for guides to help them with the most challenging issues in their courses. This is it. But this book is more than that. It is not an academic treatise. It is a rallying cry for progressives to get out of their funk and take on those constitutional scholars who claim that only conservatives know the true meaning of the Constitution.
There is an urgency to Chemerinsky’s message. For progressives, things are not going to get better until they step up and present themselves as the true defenders of the Constitution. Use the Preamble and all the values it presents. Use it as a guide to decide some of the most challenging issues of our time.
In the end, the last lines of Chemerinsky’s book say it all: “[W]e have only two choices: to give up or to fight harder. And that, of course, means that we have only one real choice: to fight harder and better than ever before.”
Chemerinsky is leading the fight — with a calm, smart, informed voice that can provide direction for others. Fight on!