By CHARLES BARZUN
Review of We the People: A Progressive Reading of the Constitution for the Twenty-First Century, by Erwin Chemerinsky
New York: Picador, 2018
“Like most liberals, I found the outcome of the 2016 presidential election to be devastating.” So begins the Preface to Erwin’s Chemerinsky’s recent book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century. The sentence foretells much about the tone and content of what follows. We the People is a book written for liberals, by a liberal law professor, with the goal of making constitutional law more liberal.
That Dean Chemerinsky’s motivations are explicitly political is not in itself a criticism. The candidness with which he acknowledges the role his own politics play in his argument is in some ways admirable. Yet that same candidness gives the book’s overall argument a paradoxical—I am tempted to say self-defeating—quality. In that way, the book provides insight into the nature and limits of constitutional law.
I.
The structure of the book’s argument is straightforward. The two chapters constituting Part I (“Conservatives and the Constitution”) set the stage. The first shows the political stakes involved in the battles over Supreme Court appointments. On issues ranging from gun control to union fees to campaign finance, the Court has become more conservative in orientation and only threatens to become more so with Trump’s two recent appointments, and possibly more (the book appears to have been written after Justice Kennedy announced his retirement, but before Justice Kavanaugh’s nomination).
The next chapter not only criticizes the particular theory of constitutional adjudication favored by conservatives, constitutional originalism, but more generally attacks the aspiration of “value neutrality” in judging. Chemerinsky explains why, over a range of constitutional issues, neither the text nor original meaning of the constitution can provide plausible or even determinate answers to current constitutional questions. So when conservative judges suggest that they are merely “applying the law,” or playing a role analogous to an umpire at a baseball game, as Chief Justice Roberts famously did in his confirmation hearing, they are either deluded or disingenuous (p. 30). Even if judges are not “the same as politicians,” because they do and should remain somewhat institutionally removed from electoral politics, they are similar to politicians in the sense that their decisions critically depend on their own values (p. 44).
A better approach to interpreting the Constitution would thus look not to constitutional meaning, as originalists do, but rather to constitutional values (p. 49). “We must develop and defend an alternative progressive vision for the Constitution,” Chemerinsky insists (p. xvi). Part II sketches out such a constitutional vision—one that Chemerinsky calls the “progressive reading” of the Constitution. The progressive reading is both more honest about the role values play in constitutional adjudication and more consistent with the Constitution’s own values.
What are those values, and how do we know them? According to Chemerinsky, they can be found primarily in the preamble to the Constitution, which reads:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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. (emphasis added)
In these fifty-two words, Chemerinsky finds explicit recognition of four constitutional values and implicit recognition of a fifth: democracy, effective governance, justice, and liberty are stated outright (see italics). And although equality is not mentioned explicitly, it is implicit in a proper understanding of liberty and anyhow is explicitly recognized in the Fourteenth Amendment (p. 74).
Each of the remaining chapters (4-8) are devoted to explaining how these values have been understood (or misunderstood) in the past and what their application entails in particular areas of constitutional controversy today. Protecting democracy, for instance, requires that it recognize that the electoral college violates the Fifth Amendment (p. 87), that the Court strike down efforts of political gerrymandering (p. 90), and that it enforce the Voting Rights Act to guard against racially discriminatory policies (contra Shelby County v. Holder (2013)) (p. 97). Providing effective governance means that the Court should aim to “empower government at all levels to deal with social problems” (contra US v. Lopez (1995) and US v. Morrison (2000)) (p. 123) but that it should enforce the system of checks and balances to constrain the increasingly powerful office of president. “Establishing justice” requires that the Court relax or abandon completely its absolute and qualified immunity doctrines (contra Van de Camp v. Goldstein (1982) and Plumhoff v. Rickard (2014)), which frustrate efforts to hold police officers accountable when they violate people’s rights, especially those of racial minorities (p. 132). It also means treating problems of excessive punishments, including the death penalty, as violations of the Eighth Amendment’s ban on “cruel and unusual punishment” (contra Lockyer v. Andrade (2003) and Glossip v. Gross (2015)) (p.158).
When it comes to “securing liberty,” Chemerinsky focuses primarily on various rights to privacy and on religious liberty. He argues that privacy rights deserve fierce protection, particularly in the abortion context, where the state has an obligation to remain “neutral” on the issue, leaving the decision of whether to abort a fetus mainly to the woman and her doctor (p. 187), as Roe v. Wade (1973) held. Religious liberty, however, must not be used so as to inflict harm on others. Yet that is precisely what the Court in Burwell v. Hobby Lobby (2013) authorized companies to do by holding that the First Amendment protects a company’s right not to provide its employees with health-insurance coverage for birth control even though a federal statute mandated such coverage.
Chemerinksy’s most ambitious interpretive proposals come when filling out what “achieving equality” requires today. There he not only defends the constitutionality and wisdom of affirmative-action programs but also argues for abandoning the requirement, entrenched in the Court’s equal protection doctrine since the 1970s, that racial or gender-based discrimination must be intentional to qualify for constitutional protection (pp. 202-20). More ambitiously, he argues that a progressive reading of the Fourteenth Amendment would read it to include a right to “minimum entitlements, including education and food and shelter and medical care” (p. 201). Although that idea now seems “unthinkable,” he suggests that, had Hubert Humphrey won the presidency in 1968, rather than Richard Nixon, such rights would have become part of our constitutional law (pp. 221-22).
Chemerinsky concludes where he began, with the 2016 election. Less than a week after the election, he and other faculty members were asked by the students at Berkeley Law, where Chemerinsky teaches and serves as dean, to reflect on the election. Chemerinsky reports that he “concluded [his] remarks by saying that we 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” (p. 234).
II.
We the People displays many of the virtues of good legal argument. The prose is clear, the logic of the argument is easy to follow, and it is all presented with a sincere passion that I suspect will engage many readers, even those without much legal training. This fact is hardly surprising given that its author is one of the nation’s leading constitutional law scholars, one who has argued before the Supreme Court and written several books on the subject (including a popular horn book on constitutional law on which I relied heavily when teaching constitutional law for the first time).
That said, as a theory of constitutional interpretation, it is vulnerable to some fairly obvious and serious objections. To begin with, Chemerinsky’s suggestion that we look to the “constitutional values” of the preamble, rather than to the actual “meaning” of its various provisions, arguably undermines the point of having a constitution in the first place. Even if the preamble is useful as an interpretive aid in close cases (a question considered below), its existence does not in itself authorize judges to ignore constitutional text when the rule it articulates seems impractical or counterproductive. The constitution contains various fairly specific rules and requirements, all of which would be rendered superfluous if they could be discarded as mere rules of thumb when they do not seem to fulfill the aspirations of the preamble.
To see why, consider an analogy Justice Scalia once invoked when explaining why the Sixth Amendment’s confrontation clause, which guarantees a criminal defendant’s right to cross examine his accusers, is not satisfied by merely ensuring that the testimony is reliable—even if ensuring reliability is the purpose of the clause. “Dispensing with confrontation because testimony is obviously reliable,” Scalia explained, “is akin to dispensing with jury trial because a defendant is obviously guilty” (Crawford v. Washington, 541 U.S. 36, 62 (2003)). Treating the Constitution’s preamble as binding, rather than its particular provisions, implicates the same problem. Why bother writing the rules, if one can look past them to the underlying rationale?
Nor is it clear that even as an interpretive aid the preamble is of much help. For one thing, the values contained in it are expressed at such a high level of generality that they cannot distinguish among competing interpretations of them. Chemerinsky’s own examples illustrate the point. The Constitution exists to “secure liberty,” but one person’s right to practice their religion interferes with another’s liberty to reproductive autonomy (see Hobby Lobby) (p. 195). Does securing “equality” in education require fostering a community of diversity and inclusiveness or ensuring that applicants are judged by the same criteria (see Grutter v. Bollinger (2003)) (p. 213)?
Or consider the goal of “effective governance.” Chemerinsky argues that the Constitution’s federal structure should be interpreted so as to “empower government at all levels to deal with social problems,” rather than to limit federal power (p. 123). But when it comes to the president’s power under Article II, Chemerinsky defends the Constitution’s system of checks and balances as necessary to prevent presidents from arrogating too many powers to that office. Never mind that virtually every president has justified his exercise of such powers on the ground that doing so is necessary to, well, ensure effective governance (whether to fight terrorism, combat climate change, avoid political distractions, or whatever).
And that’s only the half of it. Even if we could somehow specify how each of these broad values properly apply to concrete cases, doing so inevitably introduces conflicts among those values. As Chemerinsky himself notes, liberty and equality often stand in tension with each other since, for instance, “[a]ny law that prohibits discrimination limits a freedom to discriminate” (p. 74). Similarly, the criminal suspect’s procedural guarantees necessary to “establish justice” come at the cost of the police officer’s efforts to ensure “effective governance” of the neighborhood. Finally, and perhaps most importantly, the right of a people to govern itself democratically is constrained by the individual’s right to liberty and freedom of action. But where and how do we draw that line? The preamble has no answer.
III.
These points are more or less stock objections that one could raise against various constitutional arguments and theories. Problems of levels of generality and conflicting values (particularly the tension between individual rights and democracy) are the stuff of first-year constitutional law classes. Dean Chemerinsky is certainly aware of them; indeed, he even raises them against interpretive approaches competitive with his own (p. 40). The question, then, is why does he not take them on and wrestle with their implications?
The most obvious answer lies in the book’s intended audience. It seems primarily written for liberal activists and lawyer-activists, not constitutional law scholars (there’s still a difference). It is a manifesto of sorts—a call to action for allies in the progressive cause, not a legal treatise or a jurisprudential meditation. Its purpose is to motivate, not to reflect or persuade the unconverted.
Fair enough. There is a place for such books, perhaps especially now. It is hard to criticize Chemerinsky for thinking our time is one that calls for energy and action by those of us who are horrified by President’s Trump’s seeming disdain for constitutional constraints on his own power.
But I doubt that answer is fully adequate, because pervading the book as a whole is a tension deeper than those that simply flow from competition among values or interpretations of those values. It is a tension about the very nature of constitutional law. Early on, Chemerinsky chastises conservatives for falsely asserting that justices can “decide constitutional cases without making value choices or that decisions in controversial areas are about anything other than the ideology of the justices” (p. 31). But then later he encourages future progressives to defend “positive” constitutional rights to food, shelter, and healthcare against the objection that they’re anti-democratic by insisting that “there is a constitutional right to minimum entitlements, and then it follows that it is the judicial role to enforce” such a right (p. 228).
This tension is what gives Chemerinsky’s argument the paradoxical quality I mentioned at the outset. On the one hand, he argues that progressives should work hard to expose constitutional adjudication as ideology all the way down, originalists’ claims to the contrary notwithstanding. But on the other hand, when he’s articulating his preferred progressive reading of the Constitution, the law suddenly becomes a source of principle and constraint.
To spin the parable Chemerinsky himself employs, if originalism’s false claim to value-neutrality reveals it to be “truly an emperor with no clothes” (p. 46), then the progressive reading is like an emperor who admits he lacks attire but who somehow manages to convince the obedient crowds that nudism is the latest fashion craze.
To be fair, the paradox is to some extent built into constitutional law, or, more precisely, into the Supreme Court’s role in interpreting it. The judiciary is one of the three main branches of government, and the theory of the constitution is that each branch checks the power of the other branches by seeking to increase its own power. “Ambition must be made to counteract ambition,” Madison famously wrote in Federalist No. 51. But since the judiciary has neither the power of the purse nor of the sword, its power depends entirely on its reputation as an impartial arbiter of constitutional questions. It is a political actor whose power in the long run depends on it being perceived as non-political.
But that is precisely why an explicitly “progressive reading” of the Constitution threatens self-defeat. Insofar as the Court’s reading of the constitution is “progressive,” it characterizes itself as effectively taking sides in an ideological struggle, thereby undermining its claim to fairly mark out the boundaries within which such struggle can take place—which is the purpose of a constitution. And yet if instead the reading is a faithful rendering of the Court’s actual constitutional obligations, then it does not deserve the modifier “progressive.” It is just the law.
In other words, to be successful, a constitutional methodology must ground its appeal in something beyond its capacity to achieve certain political goals. So, for instance, even Ronald Dworkin, whose “moral” reading of the constitution, like Chemerinsky’s “progressive” reading, puts principles of political morality at the center of constitutional adjudication, emphasized that “[t]he moral reading is not, in itself, either a liberal or a conservative charter or strategy.” Dworkin recognized that any defense of judicial review of democratic legislation by nine lawyers requires an interpretive theory with deeper commitments than those typically expressed in the platform of one of the major political parties.
Chemerinsky might cite originalism as a counter-example to this generalization. That constitutional theory is now the official interpretive position of a large segment of the federal judiciary and a near-majority of the Supreme Court in spite of the fact that everyone knows (the argument goes) that it’s just a rhetorical tool designed to serve right-wing political goals. So it often manages to enforce the constitution as law even though the ideological agenda driving it is transparent.
That is partly true, but only partly true. For starters, originalism does purport to offer principled criteria to resolve controversial constitutional questions, even if in practice it often fails to do so. More important, as Chemerinsky himself notes, the formerly tight connection between originalism and conservative political goals is now loosening in the legal academy, and perhaps beyond. Jack Balkin, for instance, calls for “Living Originalism”; William Baude talks of “inclusive originalism”; and Steve Sachs offers “originalism as a theory of legal change.”
Under these views, many modern Supreme Court decisions, including those protecting abortion rights and gay marriage, might be consistent with originalist understandings of how the constitution should be interpreted over time. Chemerinsky criticizes this approach for being too ecumenical, with the result that “almost any result can be justified” by reference to it (p. 40). But of course, as we’ve seen, the same is true of his own approach, which looks to the abstract values of the preamble.
Finally, and not unrelatedly, it is not clear that originalism could survive as an interpretive approach that only serves the ideological agenda of the American right (though it probably could not survive if it utterly failed to do so either). In the last year, we have heard more talk of court-packing and jurisdiction-stripping legislation than any time in recent memory. For now, such talk may just seem like the hyperbole of the Resistance, but if the Court continues to move rightward, while the left makes gains in the political branches, then the question will be seriously mooted. Once that happens, if history is any guide, the Court is likely to ease off. The Chief Justice’s vote in the Obamacare case is only the most recent example of the Court’s awareness of the limits on its own power.
None of this means that Chemerinsky should jump on the originalism bandwagon and exploit its rhetorical appeal to suit his own progressive purposes. I have suggested why an explicitly “progressive reading” of the constitution seems to me ill-fated, but whether it succeeds or not is a question only our future history can answer. If the last few years have taught us anything, it’s that dramatic political developments are often hard to predict.
But in my view the Court’s precarious, even paradoxical, role in deciding constitutional questions demands that it strive for a certain kind of balance—not only of competing values and principles, but of competing factions and parties as well. If that’s true, then the best hope for a progressive reading of the constitution may lie in Chemerinsky’s call for more political engagement in legislative activities at the federal and state level. For as he recognizes in the book’s conclusion, the best way to make the Constitution more progressive is to make the people sovereign over it more progressive. And achieving that goal is only partly a matter of argument, constitutional or otherwise.
Posted on 21 August 2019
CHARLES BARZUN is Professor of Law at University of Virginia School of Law.
