This is the title of a little book by Edwin Chemerinsky, dean of the UC Berkley School of Law. Since his premise, as stated in the subtitle is “a progressive reading of the Constitution for the twenty-first century,” there is little in his argument to disagree with. Even so, it shines a light on a number of important issues that we in the progressive community ought to be aware of and factor into our thinking about the judiciary in genera land the Supreme Court in particular.
Chemerinsky begins by detailing recent actions of the conservative court and exploring the question of whether judicial review ought to be abolished. He then spends an entire chapter on conservative's claims of value-free judgments,often referred to by the late Justice Scalia as “originalism.” By way of numerous examples, he shows these claims to be false and a little ridiculous. As self-evident as this may be to most of us, itis an important foundation for the arguing specific values that should guide judicial thinking.
Which is a segue into the next chapter,which is the heart of Chemerinsky's thesis that the values of the preamble are emphatically not mere introductory fluff, but bedrock principles which ought to guide understanding of the rest of the document. And indeed, the principle was understood and accepted in the early history of our nation,however imperfectly implemented. I found it striking and disturbing that since the beginning of the twentieth century, the Supreme Court has implicitly and sometimes explicitly ruled that the preamble has no substantive power with regard to the body of the Constitution.
Most of the remainder of the book is devoted to examining how conservative decisions have often worked against the principles of the preamble, and how the application of progressive values would have differed. I note in passing one remarkable assertion that an article of the Constitution might beused to invalidate another; specifically that the Electoral College could be ruled unconstitutional. While this might be academically feasible, I can't see it ever being a practical solution to the problem.
I strongly agree with Chemerinsky's conclusion. He points out that the Constitution of the USSR is quite precise in spelling out the rights of the populace, few of which were actually available under Stalin. The point being that people in power might well be willing to abuse and ignore the provisions of the Constitution (Trump, anyone?), and in the absence of others able and willing to give force to those provisions (AKA the Republican Congress), the document is dead. And we, the people,are the ones responsible for assuring those we put in positions of power are the latter rather than the former.