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.
Conservatives seem to understand the power of the judiciary in a way liberals never have. Why has the right been so much more effective at not just controlling the courts but at defining the Constitution in the public’s mind?
Some of it has to do with the fact that they have developed simple slogans that resonate with the public. The slogans like, “We want to have justices who apply the law, not make the law,” or, “We want justices who are umpires.” Those are nonsense in terms of the reality, but they resonate with people.
More than this, the simple fact is that conservatives have recognized the power of the judiciary more clearly than liberals. Conservatives have set out for decades to get a staunch conservative majority on the Supreme Court.
In the 2016 presidential election, 56 percent of those who voted for Donald Trump cited the Supreme Court as the No. 1 reason. Among Democratic voters, the Supreme Court was No. 4 on their list in terms of why they voted for Hillary Clinton.
So there’s obviously a gap here, and it’s a big reason why conservatives are winning the battle for the courts.
Conservatives have also been more much coordinated in their efforts to develop think tanks and organizations like the Federalist Society that articulate a conservative judicial philosophy and cultivate politicians and judges who will bring that philosophy to the courts. There is really no analogue to this on the left, is there?
Decades ago, when conservatives were not controlling the Supreme Court like they do today, they set out to develop a conservative judicial philosophy and a strategy for filling the Supreme Court and lower federal courts with conservative judges. The Federalist Society has been crucial in that. Think tanks like the Heritage Foundation have also played a key role.
If you want a statistic that reveals how much more serious the right is about the courts, consider this: at this point in his presidency, Trump has essentially appointed twice as many judges as Obama did (85 to 43) even though Obama had a stronger Senate majority his first two years.
So the Republicans perceive the importance of the judiciary much more than the Democrats have and are much more effective in getting their judges through.
How can progressives convert your argument into a message and a strategy that is politically potent? Is it about replicating what conservatives have done with groups like the Federalist Society?
The left needs to carve out its own path. It has to be about exploding the nonsense of the conservative approach and offering a constructive alternative. In my opinion, the left must articulate and sell a progressive vision of the Constitution, in much the same way the conservatives began doing 35 years ago when Ronald Reagan was in office. I try to lay out what the progressive vision looks like in this book.
As far as distilling that vision into a simple political message, I’m probably not the right person to do that. I’m a law professor, not a communications specialist. But there is a progressive reading of the Constitution, and the left needs to find a way to tell that story to the voters.
There are voices on the left who think the Democrats should think long and hard about packing the Supreme Court. (You can ready Vox’s explainer on court-packing here.) Is that a good idea?
The number of justices on the Supreme Court is not set in the Constitution. It’s set by federal statute, so Congress can change it. There have been between five and 10 justices on the court over the course of American history. It became nine by historical accident in the late 1860s, and it stayed that way ever since.
Congress could increase the size of the Supreme Court. If a Democrat wins the presidency in 2020, and Democrats take control of Congress, I think Democrats need to think seriously about increasing the size of the court as a way of offsetting the stolen seat with regard to Merrick Garland.
But I think it’s premature to talk about it at this point, and of course even talking about it would do nothing but inspire a reaction that might be counterproductive. I think we should wait and see if the Democrats get the presidency and Congress in 2020, and then seriously think about it.
Reading your book reminded me that the Constitution has no fixed meaning or interpretation. It means whatever we say it means — and that means it’s not about parsing the text, so much as winning a political argument.
Well, it’s also about winning a legal argument. The reason Republicans fought so hard to get Brett Kavanaugh confirmed before the November 2018 midterm elections is that they recognized how much the outcome of cases would depend on who was in that seat on the Supreme Court.
They may pretend otherwise, but their behavior shows that they know, as everyone knows, that how cases are decided on the Supreme Court so often is a function of who’s there, what their life experiences are, and what they believe.
At the end of your book, you quote a long passage from the Stalin-era Soviet constitution, and the language is startling — it sounds more liberal and democratic than the American Constitution. The point, of course, is that constitutions are just words, and they mean nothing if the people and the institutions aren’t committed to affirming them.
I worry that there’s so much confusion in this country about the Constitution, so much ignorance, and so many institutions paralyzed by partisanship that the document has lost its motivating force.
I guess what I’m saying is, can you cheer me up?
I can try! You have to start by looking at the scope of American history. Over the course of American history there’s been tremendous advances with regard to freedom and equality. I remind my students that as recently as 2003 there wasn’t a single state in the country that allowed gays and lesbians to marry. Today, all 50 states and all territories of the United States allow same-sex marriage.
I think Dr. Martin Luther King Jr. got it exactly right when he said “the arc of the moral universe is long and it bends toward justice.” I do feel optimism in the long term that there will be advances in freedom and equality. I think we’re in a bad stretch right now, but the only way through it is to begin to articulate that progressive vision of the Constitution.