It often feels like those on the right wing of American politics use (and abuse) the Constitution as a cudgel to get their way - mainly through narrow and somewhat dishonest readings of intent and the text itself.

In "We the People", Chemerinsky offers a progressive reading and defence of the Constitution. Spurred by Trump's victory in 2016 and what he perceived as potential opportunities for political and Constitutional abuse, the author set out to examine the founding document within the frame of progressive politics and goals.

A valuable book, and one that is also well-written and quite accessible. Definitely recommended.

What To Do Now That The Court Is Lost
A “Progressive” Reading Of The Constitution Doesn’t Provide Many Answers

November 28, 2018

By Michael Giltz

Now that Brett Kavanaugh is officially Justice Kavanaugh, we can expect decades of rulings from the Supreme Court that block a progressive agenda. The rightward tilt of the Court will tempt some to undermine the independence of the judicial branch, or give up on it altogether.

Not so fast, says scholar Erwin Chemerinsky, the dean of UC Berkeley School of Law, honored by National Jurist last year as the most influential person in legal education.

Chemerinsky points out that conservatives faced a similar dilemma for decades themselves. They faced a liberal Court hostile to their agenda. Their response? They built a network for young lawyers, campaigned hard for judicial appointees at every level and developed a new philosophy dubbed “originalism” to cloak the right-wing rulings they longed for with the guise of impartiality.

In We The People, Chemerinsky insists liberals must do the same. Resist the desire to debase the authority of the courts, build up a network a la the right-wing Federalist Society, campaign hard for judges at every level, and most of all develop a progressive reading of the Constitution.

Chemerinsky argues that the key to this intellectual task is the overlooked section known as The Preamble, often quoted but rarely taken seriously. He says that the U.S. Constitution–and the U.S. government as a whole–should be a tool to work towards the goals as stated in the Preamble, to actually “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….”

As Chemerinsky is at pains to make clear, he’s far from the first to believe the Preamble is much more than a throat-clearing bit of fancy talk.

All well and good, but Chemerinsky proves no better at taking down conservative thought than at offering up a new progressive philosophy. He slaps aside the infantile argument of “originalism.” But it’s far from a definitive knock out, either because there’s so little to the argument in the first place or because Chemerinsky just can’t bring himself to take it seriously.

In response to this conservative thought, Chemerinsky offers a progressive reading of the Constitution, how that has played out in the past and what it should mean in the future.

His new philosophy entails…well, pretty much the progressive agenda of today. You cannot ensure the “general welfare” if people are worried about getting sick. How can you “establish justice” if some people are homeless? Or “secure the blessings of liberty” if transgender people aren’t free to live unburdened by the prejudices of others? Indeed, but is any of this new?

Chemerinsky’s book simply falls between the cracks. It doesn’t feel scholarly enough to impress the legal community. And it’s too schoolmarm-ish and dry for the general public.

Ultimately, the message I took away from this passionate if thin book was not the need for any grand new philosophy to refute the paper tiger of “originalism.” It’s the essential need for your side to win the Presidency and win control of the Senate again and again and again. And then put Justices on the Court who share your principles.

(Picador, November 13, 2018)

The majority of conservative rulings from the SCOTUS have been based in an ideology of "orginalism" (except, of course, when it doesn't meet their ideological needs), the idea that only the original meaning and language of the Constitution should be applied in the decisions of the Court. Erwin Chemerinsky has written a book as refutation and balance to the preposterous idea. The basic contrast between Chemerinsky's ideas and that of originalism is that for liberals the Constitution is a living changing document, and that for conservatives the Constitution is, in the words of Justice Scalia, "dead, dead, dead". The book, We the People, tries to orient liberal ideas in a grounding of the Constitution, primarily the preamble, which, heretofore, has had almost no application in SCOTUS decisions. The preamble, as the declarative portion of the Constitution, provides the foundation for the operative portion of the Constitution - which means, that all of the articles and amendments of the Constitution should be to serve the ideals identified in the preamble. If the application of the articles and amendments do not serve the purpose of the preamble, Chmerinsky concludes that the application is then, itself, unconstitutional. If this is, in fact, the case, then a great many of the originalist decisions of the SCOTUS are unconstitutional. Chemerinsky may be preaching to choir with his perspectives on many SCOTUS decisions, however, this book is vital to liberal thought and application, as the liberal movement in the U.S. has de-prioritized the importance and value of the SCOTUS in their action, voting, and strategy. Hopefully this book will change that.

Chemerinsky, dean of the University of California, Berkeley School of Law, frames his argument for a progressive interpretation of the US Constitution based on the tenets outlined in the simple preamble:

"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."

Using examples of cases decided by the Supreme Court throughout our nation's history, with thoughtful commentary on those decisions, and contrasting the progressive interpretation with the conservative "Originalist" interpretation, Chemerinsky lays out a compelling case for his viewpoint and for the Constitutional support of many progressive-led initiatives. I learned a TON from reading this book, and even if you disagree with the arguments, I highly recommend reading it just for a better understanding of Constitutional law.

Constitutional law is a deep-dive topic, but We the People is accessible for lay readers; this reader floundered a bit, but was grateful to find useful talking points on numerous issues, and also glad for the hopeful tone of the book. Chemerinsky reminds readers that attaining a court majority is in many ways a matter of chance, but even when that majority is conservative it’s worth working for a more inclusive interpretation of the Constitution and more just laws.

It’s often pointed out that conservatives have the amazing propaganda organ that is Fox News in their corner, and while no self-respecting liberal would want an equivalent disaster on the left, we surely need more and better organization of our media presence and messaging. Conservatives also have foundations whose sole purpose is to line up justices they can parade down the catwalk when a vacancy occurs. President Trump was handed a list of twenty-five of them and essentially won the silence of the Republicans by committing to confine himself to its contents; it has given us Neil Gorsuch and may give us Brett Kavanaugh. Progressives should build an equivalent roster so we aren’t shacked under our own Blue Wave.

When things turn in our favor, and they will eventually, progressives need to be ready to make judicial appointments with the same focus conservatives have brought to bear, in addition to pushing for progressive reform outside the courts. We the People clarifies progressive values relative to the Constitution and gives us a source to refer to when building our own litmus tests. It’s a much-needed document for the tumultuous moment we find ourselves in. Despite the current conservative majorities, “(P)rogressives must not yield the Constitution to them. We must develop and defend and fight for a progressive vision of constitutional law.” Amen to that.

(Heads-up: This is a rough draft of the review I'll be submitting to the Progressive Populist closer to pub date. I will get you a link when it runs.)