Festival of Books: ‘The Living Constitution’ panel draws a large -- and lively -- crowd

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Who knew the Festival of Books discussion on constitutional law would be standing room only on a sunny Sunday afternoon?

More than 300 people packed a USC lecture hall for a panel discussion titled ‘The Living Constitution’ at the Festival of Books moderated by Jim Newton and featuring law professor Erwin Chemerinsky; founding faculty member of the UC Irvine School of Law, journalist Henry Weinstein; and John W. Dean, White House counsel in the Nixon administration and author of the 2007 book ‘Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches.’

The wide-ranging topics included the Eisenhower and Obama administrations and Supreme Court cases from Brown vs. Board of Education (1954) to last week’s decision in AT&T Mobility vs. Concepcion.

And, although the U.S Constitution was the starting point for the hourlong discussion (‘We have a living Constitution -- and thank God for that,’ Weinstein declared emphatically at the outset), most of the focus was on the Supreme Court’s role in breathing life into it -- and how it has changed over the years.

Chemerinsky, whose most recent book (published in September 2010) is titled ‘The Conservative Assault on the Constitution,’ opined that every Republican president since Nixon had set out to shape the Supreme Court. ‘And by and large, they have succeeded,’ he said. ‘The only place where the court has seen fit to grant new rights [recently] is the 2nd Amendment.’ When asked to contrast the criticism of the current Supreme Court as having a conservative bias against the notion that the Warren-era Supreme Court had a perceived liberal bias, it was Weinstein who drew an appreciative round of clapping and hooting.

‘The Warren court was all about expanding rights,’ he answered. ‘Including, I might add, the right of two people of different races to marry -- without which one of the most conservative justices in Supreme Court history would not have been able to marry his wife.’ (Weinstein was referring to Justice Clarence Thomas.)

The way Supreme Court nominees are chosen has changed too. ‘The process is a lot more organized these days,’ Dean said. ‘Things are a lot more organized. In the Nixon White House, it was done in a much looser way.’ Dean went on to describe how William Rehnquist came to be nominated, a topic he covered in depth in his 2002 book, ‘The Rehnquist Choice.’ ‘I don’t think it’s something the Rehnquist family keeps on their bookshelf,’ he added with a chuckle.

When the hourlong discussion ended and Newton opened the floor to questions, audience members stood three deep -- at two different microphone stands -- to question the panel. The very first question was not, however, about the historical shaping of the Constitution, but rather an extremely current one: about the WikiLeaks case and the treatment of the imprisoned soldier Bradley Manning, who is accused of giving restricted information to the website.

‘It certainly seems like cruel and unusual punishment to me,’ Chemerinsky answered. ‘It’s punitive detention. The Army needs to follow the Constitution.’

Proof, it would seem, that the founding document of our legal system is not just a living document, but one that’s alive and well -- no bestseller list needed.

-- Adam Tschorn