Our Heroic Constitution?

When the ABA Section of Civil Rights and Social Justice invited me to write about the U.S. Constitution as a Human Rights Hero, I must admit that I was ambivalent. 

On the one hand, we have become increasingly aware lately of some of our Constitution’s deep flaws:

• Article II’s Electoral College provision prioritizes states’ rights over democratic equality, empowering a president who lost the popular vote to disregard the views of the majority of Americans about what is unacceptable treatment of immigrants, minorities, and the disadvantaged.
• Article I invites the states to put innumerable thumbs on the scales of federal as well as state elections—which many states have in the form of racist felon disenfranchisement statutes, cynical voter ID requirements, voter purges, and manipulation of registration and voting procedures. Once voted into office, a party can lock in its position.

But then, I thought, even the greatest heroes have their imperfections. George Washington and Thomas Jefferson, our revered founders, were slave owners. 

And our Constitution is indeed heroically admirable in many respects. It establishes structures that are conducive and probably necessary to human rights flourishing. The Preamble repudiates authoritarian power grabs by positing that “we the people” decide what will secure the blessings of liberty—not our elected leaders. Article VI confirms that the People’s Constitution is the supreme law of the land—not the will of elected leaders. To prevent the accumulation of too much power in any one branch, the Constitution creates an elaborate system of checks and balances among the three branches of the federal government, including an independent judiciary, and between the federal and state governments.

Donald Trump has been learning through experience that the Constitution sometimes prevents the president from having his way. Federal judges have checked unconstitutional executive policies and actions like the discriminatory travel ban, dehumanization of transgender military personnel, and defiance of the right of a 17-year-old girl in Texas to choose to have an abortion. Cities and states have used their Tenth Amendment powers to provide pockets of resistance to inhumane immigration policy in sanctuary cities.

The Constitution deserves enormous credit for creating these limits on executive power. But actions implementing the Constitution require human agents. Constitutional guarantees would be nothing but parchment barriers without the commitment of principled federal judges. And federal judges could not exercise their judicial review power without organizations like the American Civil Liberties Union (“Because Freedom Can’t Defend Itself”) bringing lawsuits.

But without the Constitution, the federal judges, the civil liberties lawyers, and the members of the public who have been demonstrating at airports and in the streets would lack a decisive basis for arguing that elections do not confer the authority to undermine our cherished blessings of liberty and equality.

So, I’ve concluded that while my heroes are actually the judges, lawyers, and members of the public who resist affronts to human rights, the Constitution is their superpower.

Susan N. Herman is president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School, where she teaches courses on constitutional law. She writes and speaks extensively on a range of constitutional law, civil liberties, and human rights issues.