Book Review/Heaher Seggel

A Republic … If You Can Keep It

Anyone following the news in the Trump era has probably heard the simile suggesting it’s like drinking from a fire hose, but to me it feels more like opening the nozzle only to discover it’s connected to a pressurized landfill. All those porn stars and fixers and environmental rollbacks are just so many rubber boots and fish skeletons dripping with some kind of effluent goop. It’s distracting, and also disgusting. Some folks like to use social media to scold others about this with messages along the lines of, “While you were upset about the latest @POTUS tweet,” x or y or z disaster happened, as if our attention can’t accommodate both things, or a multitude of them. As if watching a cat video made one complicit.

We’re all surely doing the best we can with this, and the patronizing tone from allies can be grating, but one story that has crept along steadily with increasingly dire consequences does deserve special notice: The haste and aggression with which the Trump administration has made judicial appointments. They’ve happened stealthily, and with a shameful lack of resistance from establishment Democrats, who seem as likely to shrug and give Brett Kavanaugh a seat on the Supreme Court as to actually stand and fight (though this situation is evolving as I write). A conservative majority on the Supreme Court is the enemy of progress, but conservative state appointees will gum up the works badly as well. I’ve seen significant hand-wringing about this, and it’s justified; what can we, the people, do?

One starting place is We the People: A Progressive Reading of the Constitution for the Twenty-First Century (Picador/MacMillan). Author Erwin Chemerinsky, Dean of the UC Berkeley School of Law, has written a book laying out an argument against the conservative “originalist” interpretations of the Constitution, and showing how the values in the preamble inform a progressive view of this founding document.

The argument conservative judges make to support originalism, or the view that only the actual words in the Constitution can be used to interpret it, is shored up by a claim that it’s the only way to take personal values out of one’s judgements. Chemerinsky quickly dismisses this as pure applesauce: “There is no such thing as ‘value-neutral judging.’ It is a myth that conservatives have advanced for decades and continue to espouse for their own purposes.” If we can admit that values are in play and also dismiss with the notion that the preamble is mere window-dressing on a document whose every other word carries significant weight, we can then read it as defining five values that should guide how the Constitution is interpreted: Democratic governance, effective governance, justice, liberty, and equality. And then things get interesting.

Chemerinsky shows how adherence to these principles can shape laws, and how the decisions of conservative majorities undermine the intentions of the founders by denying states the chance to be laboratories for democracy, passively allowing racist police practices to continue with no accountability for the officers and departments in question, and stripping bodily autonomy from women. The simple opening words “We the People” sent a powerful signal that this was a secular government that derived its power from its citizens; that it was initially intended only to include white men is unfortunate, but also a stark reminder that our interpretation has evolved with the times and must continue to do so.

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 clarifying discussion of many 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 continuing to work for a more inclusive interpretation of the Constitution and more just laws. Conservatives have foundations which focus intently on lining up justices they can parade down the catwalk when a vacancy occurs. President Trump was handed a list 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, a late addition who conveniently believes a sitting president is essentially immune from indictments. One hopes progressive think tanks are doing similar work, especially at the state level, so we don’t wipe out 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 reforms 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.

Heather Seggel is a writer living in Northern California. Email heatherlseggel@gmail.com.

From The Progressive Populist, November 1, 2018

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