We the People is a non-polemical polemic.
Conservative politicians developed a clever tick in recent years. When asked about climate change, they would begin their answers denying its existence with the espousal: “I am not a scientist, but…” That sentence never ended with deference to the experts, but to a slender minority of scientists who were funded by industries that would suffer if the consensus was accepted. It is an exercise in the making of fairy tales to achieve a political agenda, and that same exercise has been performed on the Constitution.
Now, I am not a lawyer, but Erwin Chemerinsky is and has bona fides that would make him the envy of anyone with aspirations to life in legal scholarship. Like most of the justices on the Supreme Court – a problematic fact in its own right – he is a graduate of Harvard Law, he has argued before the high court and is now the dean of the University of California, Berkeley, School of Law. If you believe that a crisis exists on the federal bench pertaining to the interpretation of the Constitution, and you would be right to believe so, his new book We the People: A Progressive Reading of the Constitution for the Twenty-First Century should be considered required reading for the maintenance of your sanity.
Written in the measured tones of a law professor who is attempting to broadcast to the widest lay audience, Chemerinsky’s goal is to expose the lie that conservative justices and the network of think tanks and media that support them have used to stall and rescind any progress made in civil liberties over the last 60 years. Well-orchestrated judicial activism from the political right has led to decisions that have severely limited the rights of workers and citizens while favoring corporations, law enforcement and financial elites. In this mode of interpretation, conservatives have made the text of the Constitution sacrosanct and demand that all law be considered through the prism of the founders who wrote the document. They coined the term originalism to describe this feat of logic.
With history and facts as his allies, Chemerinsky carefully dismantles the fallacy of originalism. While conservatives would make the writing of the Constitution seem divinely inspired, he takes great care to illustrate the messy process that created the founding document. The Constitution is incredibly flawed, the most evident being the enshrinement of white male supremacy. The founders enshrined slavery, appeasing Southern states with power through the three-fifths compromise, the Electoral College and equal representation in the Senate. Equality is never mentioned in the Bill of Rights, the rights of women and non-whites existing beyond the imaginations of James Madison and his cohort.
We would not have the world we have now if the members of the Supreme Court had always adhered to an originalist view. Despite popular belief, the text of the Constitution is hardly egalitarian in its dispersal of political power except for one passage which originalists dismiss at all costs and forms the source of Chemerinsky’s argument:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
We all learn to recite the Preamble in grammar school at some point, but we do not really understand why those words are there. Chemerinsky contends that the Preamble is the statement of the core values for everything that follows. It is the Preamble that makes the Constitution a “living document” that can be utilized to govern a modern world full of quotidian wonders beyond the grasp of 18th-century thinkers. The Preamble represents the great genius of the Constitution. Through its moral instruction a better, fairer and more equal country is possible.
Chemerinsky argues that the vast desires of the progressive project can be attained by interpreting the Constitution in this manner, particularly when it comes to promoting the general Welfare. Healthcare, environmental policies, education and a guaranteed living wage are all possible when the Preamble is used as a guide and Welfare is seen as an antidote to income inequality and corporate rule. Despite decades and decades of disregard for the Preamble, Chemerinsky’s argument should not be viewed as some pipe dream. The preamble of any document exists to elucidate the pages that follow it. That the preamble to the most important text in the country is ignored represents the height of arrogance.
At its core We the People is a non-polemical polemic. The book induces fury because of the facts of the case it lays out before us rather than the author’s rhetorical style. This is the history of the Constitution and Supreme Court leanly and powerfully stated to support a convincing argument that the importance of the Preamble needs to be reconsidered and made the basis of a progressive vision if the country is to achieve its egalitarian potential.
“By ignoring the Preamble, we forget the idealistic vision that inspired the Constitution and what it was meant to achieve.”
There are obstacles. The book went to print before the Kavanaugh confirmation when there was hope that Trump might appoint a single justice in his first term. The originalist majority on the court will continue to vote through their ideological bias, but, as Chemerinsky illustrates, this is hardly the first time in our history that the Supreme Court has been reactionary. Still, it feels hard to maintain hope when the democracy never felt further from the control of “We the People.” It took a generation for conservatives to get the court they dreamed of. In the coming years it is necessary for progressives to articulate a different vision of the Constitution – one based on equality and true justice – as passionately as the originalists espoused their vision. Hopefully, the damage won’t be too great when progressives get to execute their vision.