We the People: A Progressive Reading of the Constitution for the Twenty-First Century
With government machinations, scandals, and conflict bombarding our American consciousness, it’s easy to overlook the core of our country’s identity: the US Constitution. The first three words of this dearly regarded text remind us that we are the constituents who fulfill the ideals of this document. We the People are the progressive catalyst this country needs to realize the lofty ideals of our Constitution.
In the eponymous book, We the People, Erwin Chemerinsky uses the US Constitution’s preamble to inform an interpretation of the historical document with the hopes that it will guide progressives in future eras. For this reviewer, We the People is an understated yet powerful introduction to a legal treatise. It is at once inclusive and unifying; diverse and galvanizing. And its humanistic overtones inspire one of the few preambles that omits a supreme deity. Indeed, it deserves recognition beyond that of a perfunctory recitation for high school civics students. We the People is not just a title, it’s a legal philosophy that underlies his core argument: the Constitution should work for everyone, and ensuring such an equitable outcome requires us to reform how we use the Constitution. While wielding the broad scope of the preamble he tackles many issues including abortion, police accountability, gerrymandering, privacy, and gun control, among others.
So, if you intuited that “progressive” reads “liberal,” then you’d be right. Chemerinsky minces no words in this regard, and calls out Republicans for “using [the] constitution to advance their own agenda.” And in the very first paragraph, he speculates that President Trump’s Supreme Court picks will erode progressive values. He equitably decries Democrats in some of his arguments, but these are few in comparison to his examples of the far right’s political priorities. But We the People isn’t merely a platform to air grievances; it promulgates a liberal framework for the Constitution. This progressive reading is about “empowering varying levels of government” in order to uphold the magnanimous values of the Constitution and serve all US residents.
But government services are often controversial. The author notes that conservatives’ beef with entitlement programs is that the Constitution was written as a document of negative liberties; it spells out what the government cannot do. Chemerinsky disagrees here, and in a cogent argument, shows that you can simply take these negative liberties and restate them in progressive-speak as government obligations. When you focus on what the government could and should be doing for its citizens, then everyone has the potential to benefit from the Constitution.
Indeed, JFK’s famous plea, “Ask not what your country can do for you . . .” does not apply here. The people already work for the government by virtue of being taxed. So it’s only fair that we ask what our country can do for us.
From a formal standpoint, We The People is an enjoyable read due to its impeccable design. Its structure allows for a smooth progression of ideas all while captivating the reader with modern anecdotes and historical precedents. Chemerinsky is always on topic, and he writes about dense concepts in a way that can be grasped by the layperson. An intimidating topic becomes approachable, and his legal philosophy becomes digestible. But, unfortunately, this seamless feat frays where quotations’ differing tones grate against his breezy, modern prose. He does his best to contextualize some of the more difficult passages, but it can still be challenging for the average reader. With some such sections I would press on after a handful of rereads, content that I at least got the gist of his arguments.
The content was equally engaging, and considering this publication for which I’m writing this review, I was eager to read the section on privacy and perhaps extrapolate how librarians might use this text for good. But, sadly, Chemerinsky lost me in the first few pages. His introduction to twenty-first-century privacy laws centers on a regrettable anecdote. Maryland v. King was a Supreme Court case in which a man who, after being arrested for assault, had his cheek swabbed by the police to collect his DNA. This was done to potentially tie him to any previous crimes via a database cross-check, and as a result he was convicted of rape and sentenced to life in prison. The author considers such swabbing an intrusive overreach of government power. But splitting hairs over a rapist’s privacy is irrelevant to me when compared to the lifetime of trauma he inflicted on his victim. His main argument against the majority opinion (in favor of Maryland) in this case is that the swabbing was upheld due to the potential benefits to law enforcement’s ability to efficiently process criminals. He sees a precipitation of government interference as a result of pardoning such police activity. But he missed the inference about upholding public safety as a compelling government interest. Considering the massive backlog of unprocessed rape kits in the US, and the impact of the #MeToo movement, this passage is hardly progressive and totally tone-deaf.
He then moves on to digital privacy; a welcome subject in a time when legislators are sluggish to regulate industry giants. But due to the scope of his arguments, his progressive reading of this topic was lacking. With another real-life example, he argues against warrantless government searches of cell phone data via telecom providers. In Carpenter v. United States, the FBI garnered 127 days’ worth of information on Timothy Carpenter’s location and movements from his cellphone provider. Said company granted this information to law enforcement without blinking an eye or looking for a warrant. However, the only thing keeping this anecdote in the book is government involvement. The fact that a company keeps that info for so long apparently isn’t worth mentioning. I agree that police should need a warrant in order to cull information from a phone, tablet, or computer; but his focus on governmental overreach obviates a critical discussion of the data-collecting practices in the private industry like those of Google, Amazon, and Facebook. The only reason the person in the case was convicted was because this information existed in the first place—warrant or none. Ground-level privacy violations occur at the behest of these companies, but that’s moot to Chemerinsky. He just doesn’t want the feds to violate your privacy a second time. With this reading, privacy is not the issue at hand, it’s the presence of a warrant. This is even more baffling to me when he mentions “control over information” as one of the “three distinct rights” he seeks to protect with his progressive reading of privacy.
Privacy is certainly a worthy liberty due to its unique position as a cornerstone for other freedoms: intellectual freedom, the right to read and receive information, and the right to general welfare. But our liberties do not exist within a vacuum. In a maxim apt for librarianship, Chemerinsky observes that there exists a perennial tension between liberty and equality. When more liberties are afforded by the government, equality takes a back seat. And when a government affords its people high levels of equality, individual liberties suffer. The efficacy of legislation, and even library policies, are proven through balancing these competing factions in a way that is both pragmatic and equitable. It’s hard work, but that’s what makes it worth doing.
So, despite our differences in opinion, this book is a good read—it is enlightening, informative, and would be an asset for all kinds of readers. Politicians, activists, legislators, and the US Constitution buff would benefit from the philosophies and acumen contained within its pages. While it is admirable for the author to champion the People’s rights in the face of government oppression and gamesmanship, I challenge him to extend these values to regulate those analogous tools of private industry.