We create the country we want by writing it into being. And so this is what I write:
The US Constitution is a human rights document based on our current understanding of human beings, their institutions, and the natural and political world in which we live. Any law that produces results that conflict with that understanding is unconstitutional and unenforceable.
The Constitution came into being in this country not because great minds convened in Philadelphia and produced it. Instead, over decades, people of all kinds and from many places wrote statements of what they wanted from government. Many of these were codified into the state constitutions of four states. Great minds later, in Philadelphia, parsed and collated and edited that immense body of writing and thought to produce our Constitution. And now that Constitution has failed us.
"I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa," says Ginsburg, whom President Clinton nominated to the court in 1993. "That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution." -Ruth Bader Ginsburg as reported by Ariane De Vogue, ABC News
At this point, it’s becoming increasingly clear that our Constitution is incapable of enforcing basic ideas of fairness. Our press is controlled by a small group of very wealthy people who shape the ideas around which elections are held and legislation created. Educational inequality means that many citizens lack the basic analytic skills to even understand the national conversation. Economic inequality gives the wealthy great advantages selecting candidates to run for office or to run themselves. Racial inequality has, as documented by Michelle Alexander in The New Jim Crow, shut much of our population out of participation in elections. And control of the courts has permitted right-wingers to use the gerrymander and unjust voter ID laws to entrench minority rule. Our Constitution is not just a disgrace. It is the reason we are in a political, ecological, and constitutional emergency.
But the problem is not just the Constitution itself, which is a pretty good document. In the hands of decent people, the current Constitution would be fine. But we are now being treated to a very good example of why rules have to be written not for decent people, but for the kind of hypocritical, lying, crooked, grafting scoundrels that currently rule. No rules will suffice if the interpretation of those rules is ill-intentioned. And there’s a real danger to re-writing a Constitution as could happen through a Constitutional Convention: we could end up with a theocracy or a monarchy just as easily as we ended up with something better. It really depends on who gets the pen to write the document.
There’s another way, and that is to convince the public that the Constitution can be viewed differently than it is now seen. Berkeley Law School Dean Edwin Chemerinsky has called on progressives to develop a framework for interpreting the Constitution that can convey our understanding of it to the American people. Writing in The Guardian, he says:
Someday there again will be a majority on the court committed to using the constitution to advance liberty and equality. In the meantime, progressives must … develop and defend an alternative to the conservative vision of the US constitution.
…they have crucial work to do in providing an intellectual framework that current critics and future justices can use to oppose the regressive policies of the Trump administration and the conservatives on the supreme court.
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This must begin by showing the intellectual hypocrisy of “originalism”, the conservative approach to constitutional law. Conservative justices pretend that they are just following the original meaning of the constitution and deny that they are imposing their own values on the country.
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But the progressive vision must do more than simply show the intellectual bankruptcy of originalism. It must explain that constitutional law is always about applying the provisions of the constitution to current problems.
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These values are clearly stated in the first words of the constitution, its preamble. It declares that the constitution is written to create a democratic government, to ensure an effective government, to establish justice, and to secure liberty. Added to these goals should be achieving equality, something omitted from the original constitution...
Our Constitution does have the beginnings of a framework for that interpretation. It begins, “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….” So think about it:
Who created the Constitution? We the People. Not the rich, nor the powerful. As its creators, We the People have the only legitimate power change it.
What does the Constitution accomplish? First, it makes it easier for us to work together (a more perfect union). So when laws create conflict, as for example when they set men against women or immigrants against citizens, they are inconsistent with the Constitution.
Second, the Constitution helps us to create a just and peaceful society. Laws that prevent some people from voting or that send certain colors of people to jail or criminalize dissent are inconsistent with the Constitution.
Third, the Constitution helps to ensure that all of us are as free to do what we want to do as is possible without harming others… including future generations. We must not load up future generations with burdens—be they financial or ecological—that limit their freedom.
That’s a start. But the core understanding that is missing is that the Constitution is a document intended to enforce human rights. The moment that early Americans understood that people of color are capable of exactly the same good and evil as whites, they should have been covered by the Constitution… like, say, in 1801 when Toussaint Louverture formed a government based on constitutional principles. As soon as it became obvious that women were capable of governing their own affairs, an Equal Rights Amendment should have been passed. Since Queen Elizabeth I had shown such a talent, it should have been in the original Constitution. As soon as it became obvious that corporations were abusing their power to shape the political landscape, the interpretation that corporations are people should have been history. And so on.
And so I propose that our answer to Chemerinsky is:
The US Constitution is a human rights document based on our current understanding of human beings, their institutions, and the natural and political world in which we live. Any law that produces results that conflict with that understanding is unconstitutional and unenforceable.
Added: As suggested in comments by Semblance, The American Constitution Society has a section on Constitutional interpretation here.