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episode 248: The Constitution is a progressive document


“The Constitution must be adapted to the problems of each generation,” writes Erwin Chemerisnky, “we are not living in the world of 1787 and should not pretend that the choices for that time can guide ours today.”

Does that sentence read to you as obvious or offensive? Either way, it’s at the core of the constitutional debate between the left and the right — a debate the left all too often cedes to the right through disinterest.

Chemerinsky is trying to change that. He’s the dean of UC Berkeley’s School of Law, a decorated constitutional scholar and lawyer, and the author of We the People: A Progressive Reading of the Constitution for the Twenty-First Century. At the core of Chemerinsky’s vision is the idea that the Constitution must be interpreted through the lens of the preamble: a crucial statement of intent, and one that establishes the US Constitution as one of the most adaptive and glitteringly progressive founding documents in the world.

This is a conversation about both direct questions of constitutional interpretation and the meta-questions of constitutional debate in a polarized age. What, for instance, does it mean that so much turned on Mitch McConnell’s blockade against Merrick Garland? Is this just a legal debating club disguising the exercise of raw power? What should progressive constitutionalists make of proposals to expand the Supreme Court? What would be different today if Hillary Clinton had filled Scalia’s seat?

Book recommendations:

Simple Justice by Richard Kluger (1975)
American Constitutional Law by Larry Tribe
The Federalist Papers by James Madison, Alexander Hamilton, and John Jay
The Boys of Summer by Roger Kahn
The Chosen by Chaim Potok

Want to contact the show? Reach out at ezrakleinshow@vox.com


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 15 August 2019  1h2m