Washington Monthly - September/October 2021 - 105

on political books
The People's Constitution implicitly
dismantles these theories. The Constitution,
Kowal and Codrington demonstrate,
has always been a malleable document.
Any good-faith interpretation
must accept that its meaning is defined
by its shifts. And the authors show that
the amendments have moved it almost
entirely in one direction: left. The most
honest way to read the Constitution,
then, isn't as a static, 18th-century creation.
It's as a living, liberal document.
T
he Constitution was born in a state
of flux. To try to sink the document's
passage, Anti-Federalists conjured
up the specter of a despotic Congress
abusing its newfound powers.
They very well might have succeeded
had the Federalists not promised to
consider future amendments. The Constitution
was adopted only after its
boosters promised several state delegations
that the document would be
promptly changed. Shortly after its ratification,
Congress and the states set
out to pass the Bill of Rights.
But the Constitution's scaffolding did
not come off after the first 10 amendments.
The various provisions designed
to protect slavery proved untenable,
and the country collapsed into civil war.
As soon as the Union defeated the Confederacy,
the northern states proceeded
to make transformations that alone
may rival what was done in 1787. Kowal
and Codrington argue that the Thirteenth
Amendment, the first of the
three Reconstruction amendments,
" wrought the most profound change of
any amendment to the Constitution. "
Not only did it ban slavery, but it was
the first example of using the amendment
process to enlarge rather than
limit the powers of the federal government,
reflecting a new vision of the importance
and necessity of a powerful
central authority. It enacted restrictions
on the behavior of private individuals,
which set the nation on a new path,
giving the government more authority
to regulate society.
The next two amendments were also
highly transformative. The Fourteenth
Amendment guaranteed citizenship for
everyone born in the United States. It
further empowered the federal government
by imposing important limits
on state governments-banning them
from passing laws abridging the privileges
or immunities of citizens, prohibiting
them from depriving any person
of life, liberty, or property without
due process, and demanding that everyone
receive equal protection under the
law. The Fifteenth Amendment also curtailed
states' rights by enshrining Black
men's right to vote, overriding laws in
both the South and the North.
But although these amendments had
clearly rewritten the Constitution to be
more progressive and to give the federal
government more authority, there was
no legal revolution. In part, that is because
the Supreme Court refused to accept
that the country's
central document had,
in fact, been significantly
altered. It curtailed
the reach of the amendments
for decades by
striking down federal
legislation that enforced
its clauses. It was not until
the mid-20th century
that the post-Civil War
amendments truly came
into force.
Unfortunately, today's
Supreme Court acts in a
similar manner. It has
dramatically limited the
ability of Congress and
the president to fight
voter suppression, arguing that critical
parts of the Voting Rights Act violate the
Constitution's federal design. The conservatives
behind these decisions could
not be more wrong. Like their 19th-century
predecessors, they have chosen to
actively
disregard
amendments
that
gave the central government more power.
Rather than view the Constitution as
the evolving document that it is, they've
decided to pretend that the document
has shifted little since Philadelphia.
acial equality isn't the only area in
which obstinate justices have contorted
the Constitution, either ignorR
ing
its amendments or appropriating
them for their own causes. Kowal and
Codrington explain how the Fourteenth
Amendment became, improbably, the
anchor for the expansive view of corporate
rights envisioned by the late 19th
century's increasingly conservative Supreme
Court. Famous for such decisions
as Lochner v. New York, which invalidated
a state law regulating bakery working
conditions, the Court viewed any restrictions
on the power of private wealth as
illegitimate and unconstitutional. This
now largely discredited jurisprudence,
rooted in laissez-faire economics and
vague notions of " natural law, " ran counter
to the amendment's text and history.
Over four decades, it was a powerful
brake on the people's ability to address
new and unprecedented social harms.
" The Sixteenth Amendment ranks
among the most significant
progressive achievements in
American history, " according
to the authors, because,
by allowing for a federal
income tax, it provided the
financial base for much of
the progressive legislation to
come in the 20th century.
But the people fought back. In a fairly
short time, spanning 11 years, activists
were able to amend the Constitution
to create a fairer tax system, to have
the people elect senators rather than
state legislatures, to enshrine women's
right to vote, and to ban liquor across
the country (at the time, Prohibition
was championed by the left). These progressive
amendment campaigns provided
the model for subsequent efforts to
further remedy the defects of the original
Constitution, and they hammered
home the point that America's founding
document was now meant to be liberal.
Kowal and Codrington give special life
Washington Monthly
105
Washington Monthly - September/October 2021

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