Erwin Chemerinsky is a book about the Constitution that is more heart than head. He offers a progressive reading of the Constitution for the 21st century to contrast with the originalism of the late Justice Scalia and the current conservative majority. His progressive reading is based on the Preamble’s lofty language of key values animating the Framer’s vision for the Constitution. The values that Chemerinsky identifies are democratic processes, effective governance, justice, liberty, and equality. The latter value is not listed in the Preamble but Chemerinsky argues it is implied and also comes from the Fourteenth Amendment. For readers who are distraught by the current Supreme Court’s originalist activism, this book will offer some hope but not much substance. For those who want a rigorous way to read the Constitution that can effectively compete with originalism, this book is a starting point but makes one wonder if this is the best the liberal legal academics have to offer. For example, why does Chemerinsky glide past the language of “for the common defence,” which would mean the Court should tend to defer to military institutions and executive power? Also, what is the Court supposed to do when these values conflict, e.g., when liberty conflicts with equality as in the Masterpiece Cakeshop case? Nonetheless, Chp. 2 on the flaws in originalism and Chp. 4 on constitutional protections for democratic processes are well worth reading. Chp. 8 on disparate impact as a sufficient basis for proving discrimination in violation of equal protection instead of having to prove discriminatory intent is also valuable.
