It’s Time for a Progressive Reading of the Constitution
Erwin Chemerinsky

Thank you professor.

I had the pleasure of being one of Dr. Jack Balkin’s students the first year he taught law school. Prior to that, Dr. David Atkinson was my Constitutional Law professor in the Political Science department at the same university; a widely-respected, published, and notable Supreme Court historian in his own right.

These were the two principle people who had the most significant impact on my education regarding constitutional law, as well as the long evolution of the American legal system. Between them I accumulated approximately 18 credit hours in constitutional law and jurisprudence. Other than the influence of my mother, these two men made me think about all things political and legal in ways I had never before imagined. I was blessed to have fallen under their tutelage at different times during my education, and forever grateful for the manner in which they opened my mind to the law. It was one of the greatest gifts I have ever received.

As you noted Professor Chemerinsky, the concept of “original intent” is laughable. Particularly with the utter hypocrisy in which it has been applied.

To wit:

  • A basic deconstruction of the original language contained in the 2nd Amendment would logically lead one to conclude that the government was empowered to regulate gun ownership. After all, the word “regulated” being present in the very language of the clause begs for an explanation. Let alone properly deconstructing the sentence. The proverbial “cherry picking” of original language does not make law. If that constitutes “originalist”, it is a perversion of the highest order.
  • As was so eloquently highlighted, the notion that corporations should be empowered to make campaign contributions under the Constitution, or the Bill of Rights, is absurd. Even Mitt Romney’s admonition that “corporations are people too” stretches the bounds of credulity to a degree that defies logic and reason. Particularly if it is based on some ostensible “original intent” by our Founding Fathers.

In this latter circumstance, what is most perplexing is the foundation upon which defenders of the Citizens United decision predicate their legal arguments in order to support that hopelessly illogical rationalization. I would venture to guess that the vast majority of lawyers in this country, if pressed on the issue, would not even know how the idea of corporations being recognized as “personages” arose. I would also say the same about politicians and members of the judiciary. Let alone the general public.

In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), a tax case regarding the valuation of fences marking the boundaries of railroad easements is magically construed as grounds to include an extraneous commentary about corporations being the equivalent of a human being. All through the spoken words of a judge (court dicta) ending up in the headnotes (summary) of the case, per an arbitrary decision by the court clerk; neither spoken words nor headnotes are deemed as the basis for a particular legal ruling.

Case law is construed from the “four corners” of the court’s written legal opinion. A principle of legal precedent in American law that was ignored in the Santa Clara case. The result of which is one of the most twisted legal frauds perpetrated upon our society. All for the benefit of the rich and powerful.

Citizens United is its bastard child; a tainted progeny of the unholy union between money and politics. An abomination of everything our precious Constitution stands for, representing the most craven and base political and economic motives for undermining the beacon of democracy.

I hope we as Americans can find a way to purge our system of this pestilence, lest it devours the most hallowed principles of freedom and liberty that many men and women have spilled their blood for in order to give birth to and sustain this unique and heralded republic over the past 240 years.

Professor Chemerinsky’s clarion call for reading our Constitution in a more progressive light is the very remedy our Founding Fathers would prescribe. In support of the professor’s salient observations, I offer two quotes from Thomas Jefferson, co-author with James Madison of the Bill of Rights:

…younger recruits, who having nothing in them of the feelings or principles of ’76 now look to a single and splendid government of an Aristocracy, founded on banking institutions and monied in corporations under the guise and cloak of their favored branches of manufactures commerce and navigation, riding and ruling over the plundered [citizens]…”

— a letter from Thomas Jefferson to William Branch Giles (1825)

I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country.

— a letter from Thomas Jefferson to George Logan (November 12, 1816)