It’s Time for a Progressive Reading of the Constitution
Conservatives have claimed the moral high ground of so-called originalism. Liberals need to put forward their own vision.
by Erwin Chemerinsky via Medium on November 7, 2018
For five decades, conservatives have claimed the moral high ground in judicial matters, claiming that they are simply interpreting the Constitution as it was written by our Founding Fathers—what they call an originalist approach. But conservative justices’ decisions are no less shaped by their worldview than progressives’.
In 2008, for instance, for the first time in U.S. history, the five conservative justices on the Roberts court declared a local gun control ordinance to be unconstitutional—a violation of the Second Amendment. In 2010, these same justices found that corporations have the right to spend unlimited amounts of money in election campaigns. In 2013, they invalidated a federal civil rights law in the area of race—a key provision of the Voting Rights Act of 1965—for the first time since the 19th century.
By any measure, all these cases were based on the ideology and values of the conservative Republican justices, not the text or the original meaning of the Constitution. It is laughable to say that the framers of the First Amendment intended that corporations should be able to spend unrestricted sums from their campaign treasuries to get candidates elected or defeated. Those who wrote the First Amendment did not envision campaign spending as it exists today, let alone modern corporations. Additionally, each decision-overruled precedent invalidated a law that was enacted with overwhelming support, broadly decided a matter when a narrow ruling was possible, and did so to advance conservative political values.
It’s time for progressives to fight back by offering an alternative vision of constitutional interpretation and constitutional law based on fulfilling the Constitution’s promise of liberty and justice for all. Progressives need to expose how conservatives are using the Constitution to advance their own agenda, which favors business over consumers and employees and government power over individual rights.
The first step must be to refute the conservatives’ legal notion of “originalism,” whereby all constitutional issues, including such controversial questions as the death penalty or affirmative action, can be resolved based solely on the original text of the Constitution and its meaning at the time it was written. Conservatives maintain that this allows justices to decide cases without imposing their own values. That is nonsense. 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.