May 3, 2020
THE OTHER TWO BRANCHES ALWAYS WANT THE LEGISLATIVE POWER:
Is a Progressive Reading of the Constitution Possible?: a review of We the People: A Progressive Reading of the Constitution for the Twenty-First Century, by Erwin Chemerinsky (CHARLES BARZUN, 8/21/19, The New Rambler)
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).
Mr. Cherminsky is obviously not wrong that, as a simple matter of textual construction, primacy needs to be given to the Preamble, which describes the purposes of the entire document and actions that transgress those purposes are prima facie not protected by it. But, while those are the Ends, the rest of the Constitution describes the Means we have chosen to realize them and there he seems to have no regard for the actual text. Indeed, he reflects the inevitable hostility to the constitutional order that we always find in those who desire results that republic liberty and the Separation of Powers will not render.
Several of his objections are easily dispensed with; the Electoral College and gerrymandering (drawing unequal legislative districts for nakedly political purposes--like two Senators per state) are explicit in the Constitution, so arguing that they are inconsistent with the purposes of the document is simply bizarre. The giveaway is that he has ditched the wording of the Preamble in favor of "democracy" which a republic is explicitly not. Of course, the Amendment process affords us a means of changing these anti-democratic provisions--as we disastrously did with the appointment of Senators--but, thus far, we have not chosen to do so.
And, while we have properly chosen to reduce use of the death penalty or even ban it on state levels, the argument that it is inconsistent with the Constitution can not get around the fact that it was not considered so by the authors. the proper remedy for those who consider it cruel and unusual is legislative, not interpretive.
Meanwhile, he has clearly lost the plot when he insists on some panoply of privacy rights, a concept nowhere mentioned in the Preamble nor the rest of the text. On the other hand, free exercise of religion is mentioned and, therefore, protected, so he needs some other way to achieve his results. The simplest in the specific circumstance he raises would be to differentiate between employers. Thus, a businessman who owns his own company or a religious organization could not be bound to provide abortion coverage, but a corporation or 501c3 could, not being either persons or religious institutions.
But the most troubling part of his whole program and the point where it most clearly departs from the text is in his notion that the Executive and Judiciary branches should exercise the Legislative function (the Court should aim to "empower government at all levels to deal with social problems"). Given that republican liberty requires not only that we all be bound equally by every law but that we be allowed to participate in the deliberations over and process of adopting such laws, the idea that unelected officials should be able to effectively write laws on their own is antithetical to our Republic. (Neil Gorsuch's book is good on some of this.)
ultimately, the answer to the question the review raises--is a Progressive reading of the Constitution possible?--is the same as the answer to the question of whether a Regressive reading (as the Right prefers) is possible: No. The Left and Right do not have an argument with how to read the text but with the purposes of the text. It is the Republic they want to get rid of.
Posted by Orrin Judd at May 3, 2020 9:03 AM