To paraphrase Dr. McCoy of the original Star Trek series – ‘I’m a rabbi, not a lawyer!’
That thought came to me four years ago when I watched Khir Khan, an Muslim lawyer and father of an American soldier killed in combat, speak at the Democratic National Convention about his love for America, faith in the U.S. Constitution, and disdain for Donald Trump’s Islamophobia and bigotry. Mr. Khan said before the nation:
“Donald Trump, you are asking Americans to trust you with our future. Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of law.’”
Mr. Khan then pulled a copy of the Constitution from his breast suit pocket and showed it to the nation.
I confess that I had never read the Constitution. Mr. Khan’s speech inspired me to do so, but I wanted a teacher to guide me because the Constitution is an imperfect document and the complexities of American jurisprudence require experts to interpret it.
A few months ago I learned of a book entitled We the People – A Progressive Reading of the Constitution for the Twenty-First Century” by Erwin Chemerinsky, dean of the UC Berkeley Law School and a noted legal scholar (a disclaimer – Erwin was for a brief period a member of my congregation in Los Angeles until he accepted the position as dean of the law school at Duke University. From there he returned to California to become dean of the UC Riverside law school, and then to UC Berkeley’s law school in 2017. I have followed him mainly through his op-eds in the LA Times and always found what he had to say instructive and clarifying).
I just finished reading Erwin’s clear and concise book and recommend it to anyone interested in gaining a progressive understanding of the Constitution, its amendments, and many key rulings in light of the multiple challenges Americans have faced historically and today given the new reality of a nine-member Supreme Court dominated by six conservative justices.
Erwin lays out his case for a progressive vision of the Constitution by shining a light on the core values articulated in the Constitution’s Preamble with one additional core value as advanced in the 12th, 13th, 14th, and 19th Amendments outlawing slavery, giving citizenship and the right to vote to former slaves, and granting suffrage for women. Here is the Preamble which I learned by memory in elementary school before reciting the pledge of allegiance:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure 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.”
The Preamble, Professor Chemerinsky notes, is often ignored by conservative legal scholars. But, he affirms, the four values under-girding our American constitutional system are contained in it and ought to be applied to every case coming before the Court: a democratic government, effective governance, justice, and liberty. To these he adds a fifth – equality – based on the above amendments.
Erwin considers the weakness of the “originalism” argument (Justices Scalia and Thomas advocated for it), the differences between liberal and conservative opinion, and how a justice’s political values often affect his/her rulings despite what he/she says in Senate confirmation hearings.
He discusses free speech and corporate funding in elections (i.e. Citizens United), gun ownership and the right to carry weapons of mass destruction, the unfairness of the electoral college giving inordinate power to small states, the sometimes lack of majority rule in national elections, the distortions brought about by partisan gerrymandering by state legislatures, the suppression of the vote and racial discrimination, equal protection, states’ rights, federalism, the separation of powers doctrine, just policing, fair trials, punishment and unfair incarceration based on color, the unconstitutional death penalty as cruel and unusual punishment, unfair sentencing, prison reform, the right to privacy, freedom of choice, due process, separation of church and state, racial discrimination and the constitutional justification for affirmative action, minimum entitlements, and judicial enforcement.
In his conclusion, Erwin counsels against despair even in light of the current make-up of the Supreme Court:
“It is easy to become demoralized when confronted with a very conservative Court that likely will remain that way throughout most of the rest of my life. The temptation is to give up on the idea of using the Constitution for social justice. But such surrender is shortsighted. Arguments that today fall on deaf ears can be the basis for future action. A constitutional right to minimum entitlements is not going to happen in the foreseeable future. But if it will happen at all, it will result from progressives developing and defending and fighting for this vision for the Constitution.”
I recommend this wise and clearly written volume to anyone seeking a progressive understanding of past, current, and future rulings of the Supreme Court.