Constitution’s biggest flaw? Protecting slavery

September 17, 2019
By: Andrew Cohen
Cotton Pickers
Berkeley Law Dean Erwin Chemerinsky said the Constitution’s “biggest flaw” is its protection of the institution of slavery. (Image courtesy Library of Congress)

For many, Berkeley Law Dean Erwin Chemerinsky wrote the book on Constitutional Law. Or, more accurately, the books. Published last year, We the People: A Progressive Reading of the Constitution for the Twenty-First Century is one of several he has penned about America’s founding document, including a seminal casebook and treatise now in their fifth and sixth editions. He frequently argues constitutional issues in appellate cases, including in the U.S. Supreme Court, and his nuanced Constitutional Law bar review lectures—given for hours at a time, with no notes—is the stuff of legend. Named the most influential person in legal education in 2017 by National Jurist magazine, Chemerinsky agreed to share some insights about the Constitution’s tenets, history, and challenges.

What are the core values of the U.S. Constitution?

The core values of the Constitution can be found in the preamble, which is too often overlooked. It states:

“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 for the United States of America.”

Erwin Chemerinsky
Erwin Chemerinsky is the dean of UC Berkeley’s law school.

The preamble describes the core values that the Constitution seeks to achieve: democratic government, effective governance, justice and liberty. The preamble reminds us that the Constitution is created by “we the people.” The people are sovereign. This phrase makes clear that the United States is to be a democracy, not a monarchy or a theocracy or a totalitarian government, the dominant forms of government throughout the world in 1787 and before. The preamble tells us that the Constitution exists to ensure that the national government has the authority to do everything that is part of creating a “more perfect union.” The preamble states that the Constitution is meant to ensure justice and to protect liberty. Justice must include both procedural fairness in government proceedings and fair outcomes.

There is one key value not mentioned in the preamble: equality. This omission should not be surprising for a Constitution that protected and institutionalized slavery and that protected only the rights of white men. Women, of course, were not accorded the right to vote until the adoption of the 19th Amendment in 1920. The 14th Amendment, adopted in 1868, after the Civil War, added the assurance of equal protection.

I believe these are the core values of the Constitution: democratic governance, effective government, justice, liberty and equality.

What are some of the strengths of the Constitution that have allowed it to survive the test of time?

The Constitution was intentionally written in broad, open-textured language. It leaves it to each generation to give meaning to these words. It is and was meant to be a living document. There is no other way that it could have survived the test of time. It was written in 1787 for an agrarian slave society and is used to govern our digital world of the 21st century. Long ago, in 1819, Chief Justice John Marshall wrote in McCulloch v. Maryland that “we must never forget that it is a Constitution we are expounding,” one that is meant to be adapted and endure for generations to come.

The Constitution also has stood the test of time because of its core values. It protects democratic governance, ensuring regular elections of those who hold most key offices. It creates a structure of government that provides checks and balances, such as the separation of powers at the federal level and the division of powers between the federal government and the states. It seeks justice, such as ensuring that no person is deprived of life, liberty or property without due process of law. It safeguards liberty and, especially in the Bill of Rights, protects fundamental rights such as freedom of speech and the press, religious freedom, trial by jury in criminal and civil cases and protection from cruel and unusual punishment. It promises equal protection of the law.

What are some of the Constitution’s biggest flaws, and how have those flaws manifested themselves?

The Constitution’s biggest flaw was in protecting the institution of slavery. Many constitutional provisions did this. Article 1, Section 9, prohibits Congress from banning the importation of slaves until 1808, and Article 5 prohibited this from being amended. Article 1, Section 2, provides that, for purposes of representation in Congress, enslaved black people in a state would be counted as three-fifths of the number of white inhabitants of that state. Article 4, Section 2, contains the “fugitive slave clause,” which required that an escaped slave be returned to his or her owner. Ultimately, it took a Civil War and constitutional amendments to eliminate slavery. But racial inequalities that can be traced back to slavery have existed throughout American history and persist today.

 Erwin Chemerinsky gives a talk
Dean Erwin Chemerinsky gave a talk on the perilous state of the U.S. Constitution this summer. (UC Berkeley photo courtesy of Berkeley Law)

The Constitution also is flawed in not being true to its democratic premises. The Electoral College means that candidates who lose the popular vote can be elected President of the United States. This has happened five times in American history, including in 2000 and 2016. In no other country in the world that considers itself a democracy can the loser of the popular vote be deemed the winner of the election. The Electoral College is inconsistent with the most basic notions of democracy. Likewise, the method of choosing the United States Senate cannot be reconciled with democracy. Every state gets two senators as a result of a compromise made at the Constitutional Convention in 1787. Wyoming, with a population of 577,000, gets the same representation in the senate as California’s 39.5 million people. Nor will this change: Amending the Constitution requires approval of three-fourths of the states, and there is no way that states which benefit from this will ever approve changes that decrease their political power.

The Constitution is silent on how it is to be enforced. Without enforcement, the document is little more than just words on parchment. The power of courts to enforce the Constitution is nowhere mentioned in the document. In 1803, in Marbury v. Madison, the Supreme Court held that the judiciary has the power to declare laws and executive action unconstitutional. The court explained that the Constitution was meant to limit government, and without enforcements, those limits would be meaningless.

In what fundamental ways do progressive versus conservative readings of the Constitution differ?

The simplistic answer is that progressives believe in a living Constitution, while conservatives believe that the meaning of a constitutional provision is fixed when it is adopted and can be changed only by amendment. The late Justice Antonin Scalia, a conservative, was fond of saying that “the Constitution is dead, dead, dead.” These views have been given labels. The conservative view is termed “originalism” and believes that constitutional interpretation must follow the original understanding of a provision until it is amended. The progressive view is “non-originalism” and believes that the Constitution can evolve through interpretation, as well as amendment.

But this is overly simplistic because, at times, both conservatives and progressives justify their positions in terms of the intent of the framers of the Constitution. And both conservatives and liberals often ignore the original understanding. The same Congress that ratified the 14th Amendment also segregated District of Columbia schools. That would make Brown v. Board of Education wrongly decided. In fact, that Congress also adopted race-conscious programs that today would be called affirmative action. Yet, conservatives who oppose affirmative action abandon their originalism in arguing that such programs are unconstitutional.

The real difference between conservatives and progressives is in their substantive values. Progressives favor separation of church and state; conservatives reject this and want to interpret the First Amendment to allow more religious involvement in government and government support for religion. Conservatives want to create exception to general laws, such as anti-discrimination laws, to protect religious beliefs; liberals reject this. Conservatives want to provide more protection for corporations, such as in their ability to spend money in election campaigns; liberals reject this. Progressives want to protect rights not enumerated in the Constitution, such as reproductive freedom for women; conservatives reject this. Progressives seek greater equality, such as for gays and lesbians, including a right to marriage equality; conservatives reject this. Conservatives interpret the Second Amendment to protect a right of people to have guns in their homes and on their persons; liberals see the Second Amendment as being only a right to have guns for militia service. Progressives seek to expand protections for criminal defendants under the Fourth, Fifth and Sixth Amendments; conservatives seek to narrow these protections and to give more authority to law enforcement. Progressives see the death penalty as inherently cruel and unusual punishment that violates the Eighth Amendment, while conservatives believe that the death penalty is constitutional. These are the disagreements that lead to 5-4 decisions on the court and that explain the differences in approaches to constitutional interpretation between liberals and conservatives.

What remedies did the founders provide if government officials violated the channel of power assigned to them?

The Constitution created a system of checks and balances that were meant to prevent abuses of power and provide remedies when government officials act unconstitutionally. The genius of the system is that it was meant to require the agreement of two branches of government for any major actions. It takes both Congress and the president to enact a law. It takes the executive branch and the judiciary to enforce it. Appointing a federal judge or a cabinet member or an ambassador requires appointment by the president and approval by the Senate.

In theory, if a president exceeds his or her powers, Congress can pass a law to stop the action or the federal courts can invalidate the presidential action. If Congress exceeds its powers, the president can veto the actions, or the courts can declare it unconstitutional. But the reality is often much more difficult. The president can veto anything passed by Congress, and it takes two-thirds of both houses of Congress to override a veto. If even one house of Congress is of the same political party as the president, it may be unwilling to act. Courts may be reluctant to get involved or be deferential to the other branches of government.

There are other checks in the Constitution. For example, Congress can impeach and remove the president, the vice president, federal judges and all officers of the United States for “treason, bribery, or high crimes and misdemeanors.” But this takes the vote of a majority of the House of Representatives to impeach and the vote of two-thirds of the Senate to convict.

Ultimately, there is the check of the democratic process. Those who abuse their power can be voted out of office. But a great deal of damage can be done before that happens.