Our Liberal Constitution

By Adam Winkler, a professor at the UCLA School of Law, and author of Gunfight: The Battle over the Right to Bear Arms in America. This post is part of an ACSblog Constitution Day Symposium.

Over the past three decades, conservative legal commentators have promoted a narrative about our Constitution that puts our hallowed text at odds with the goals of liberals. The Constitution, this story goes, is a profoundly conservative document whose words and principles tilt favorably towards the policy goals of today’s Republican Party: Small government. Law and order. Hostile to gay rights. Opposed to campaign finance law and affirmative action. Favoring nearly unbridled executive power in matters of war and foreign policy. If only jurists stuck to history – by interpreting the text by way of original intent or, alternatively, original meaning, rather than the living constitutionalism favored by Warren Court liberals – we would see the Constitution in its true light.

There’s just one problem with this story. It’s not true.

The Constitution was designed by the Framers to be a radically progressive document. The founding generation was comprised of revolutionaries, people who sought to make a new system of government that broadened rights rather than limited them. Their handiwork was itself thoroughly reformed by another group of progressives: the radical Republicans who added the Reconstruction Amendments. Over and over again, the Constitution has been revised by people inspired by liberal ideas, from the populists who sought the direct elections of senators to woman rights proponents who fought for the right to vote. Taken as a whole, the Constitution is anything but a conservative document. And while its words and principles don’t favor any political party, many of its core ideas support the policy goals of modern-day liberals.

Take, for instance, the argument that the Constitution favors small government. It is undoubtedly true that the framers wanted to circumscribe the power of government; that’s why we have the separation of powers, federalism, and a Bill of Rights. Yet often ignored is that the Framers crafted the Constitution to expand the powers of government so that Congress could effectively solve national problems. The document the Constitution replaced – the Articles of Confederation – hobbled government too much and the men who met in Philadelphia sought to rectify that error.

While the federal government is indeed one of limited powers, as it should be, when acting pursuant to an enumerated power, federal authority is plenary. Some critics of the modern Supreme Court say Congress has assumed a much broader power under the Commerce Clause than originally intended because of misguided interpretations of the Supreme Court. Yet what has grown is not so much the formal power as the amount of commerce among the several states. The framers didn’t envision Congress’s current authority – because they couldn’t have imagined the current national economy.

Nor is the document favorable to the law and order views that have animated so much of the conservative backlash against the Warren Court’s criminal justice rulings. Look at the Bill of Rights. Almost all of its provisions are protections for accused criminals. The Constitution was designed to make it hard to convict someone of a crime, not make it easy. And while the drafters of the 14th Amendment never thought about how its words would apply to questions of gay rights, the text makes no distinctions on the basis of sexual orientation and demands equal protection of the laws and due process for everyone. Affirmative action? No Congress has adopted more racial preferences than the Congress that proposed the 14th Amendment for ratification.

One could go on and on. The basic point remains the same. Our Constitution is deeply imbued with liberal values. We don’t need a living Constitution to advance the principles of equal citizenship. All we need is to stay true to our Constitution’s text and the bold, progressive principles it embodies.

'To Promote the General Welfare'

By Martha F. Davis, Professor of Law, Northeastern University School of Law.

The national Constitution is a singular document, but it is not unique. All 50 states of the U.S. and Puerto Rico have their own constitutions, some of which -- through text or interpretation -- stake out approaches that are very different from the federal document. It is worth thinking about the alternative paths that these state documents take, and the possibilities that they raise, as we celebrate and critique the national Constitution on this Constitution Day.

This entry focuses on one area of significant difference between state and federal constitutions: their treatment of economic and social rights.

The national Constitution addresses economic and social rights prominently but with little specificity. The Preamble states that an overriding purpose of the U.S. Constitution is to “promote the general welfare,” indicating that issues such as poverty, housing, food and other economic and social welfare issues facing the citizenry were of central concern to the framers. However, the Bill of Rights has been largely construed to provide procedural mechanisms for fair adjudication of those rights rather than carving out claims on the government to ensure that individuals actually have any social and economic assets to protect. Efforts to convince courts of alternate constitutional interpretations have generally failed. The Supreme Court has ruled, for example, that while the due process clause of the 14th amendment ensures fair processes for welfare recipients, there is no underlying constitutional right to a minimum standard of living. Similarly, the Supreme Court has not found a general right to education derived from the more explicit constitutional guarantees of political participation and equal protection that might be deemed to presuppose an educational baseline.

Many state constitutions, in contrast, articulate positive rights to welfare, health, education, and the right to work. One of the most specific of these provisions, article XVII of the New York State Constitution, states that “the aid, care and support of the needy are public concerns and shall be provided by the state…in such manner and by such means” as the legislature shall determine. The Constitution of North Dakota provides a similarly specific right to education, stating that “the legislative assembly shall provide for a uniform system of free public schools throughout the state.” Alaska’s constitution, adopted at the time of statehood in 1959, addresses the public health of state inhabitants, as does Hawaii’s, which states that “the State shall provide for the protection and promotion of the public health.” Finally, many state constitutions also address the affirmative right to work and the right to organize as members of trade unions. For example, the New York State Constitution states, “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” Several state constitutions also specifically address working hours and working conditions.

In adjudicating economic and social rights, state courts are often dealing with texts substantially different from and more specific than the federal constitutional treatment of these rights. But at a minimum, the state constitutional experience certainly demonstrates that these matters, critical to the general welfare, are of appropriate constitutional concern. In a different time, and with a different Court, the General Welfare clause of the U.S. Constitution might be linked to a more robust understanding of constitutional equality to give substantive meaning to the Bill of Rights. Given the textual support for this approach to federal constitutional interpretation, it is hard to see how even Justice Scalia could object.