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Barbara McQuade Comments On Where We've Been, Where We Are & Where We're Going On Constitution Day

Jonathan Thorne

University of Michigan law professor and network TV legal analyst Barbara McQuade says theConstitution still holds up as a guidebook for how we are going to live true to our values more than 200 years after it was signed in 1787.

WEMU's Lisa Barry talks with McQuade, who shares many thoughts on the September 17th federal holiday "Constitution Day" about the importance of the Constitution and why it still matters now.


Lisa Barry: September 17th is a federal holiday known as Constitution Day. This is Lisa Barry. And joining us now on 89-1 WEMU to talk more about that is former U.S. attorney for Southeast Michigan, current University of Michigan law professor, network TV legal analyst, and we can't leave out host of the popular new podcast, Sisters in Law, Barbara McQuade. Thanks so much for talking to us. 

Barbara McQuade
Credit Wikipedia Media Commons / wikipedia.org
Barbara McQuade

Barbara McQuade: Oh, thanks for inviting me, Lisa. Glad to be with you. 

Lisa Barry: With all those credentials, what does Constitution Day mean to you? 

Barbara McQuade: Well, I think it's an important moment to think about our Constitution. It is an interesting document. It has some wonderful strokes of genius in it, like setting standards about reasonableness that can evolve as society evolves. You know, the right against unreasonable searches and seizures, for example, was written in a time when they meant rummaging through the papers in your home and now can apply to things like cell site location information. So, that's a stroke of genius. But the Constitution also is a relic of its day. And the inherent racism that existed at the time, including slavery and counted black people as three fifths of a person for purposes of representation in Congress, for example. And a great compromise about how to count slaves. So it, you know, it ensconced into the law slavery and other inequities based on assumptions of the day and yet also had these ingenious things. So, I think one of the great things about the Constitution is the ability to amend it and the ability for judges to interpret it, so that it can apply in a way that achieves justice today. So, it's a backstop that prevents government overreach, guarantees some of our rights, but is, you know, only an effort toward a more perfect union. It is as flawed as the humans who wrote it and interpret it. So, it's on all of us to try to to make it better and work for all of us to improve the equality that I think we all aspire to. 

Lisa Barry: Do you think its essence and intention holds up over 200 years later? 

Barbara McQuade: I do. You know, it's basically kind of the rules of society that's going to govern us,. You now, how do we want to run our rulemaking in the Legislature? How are we going to administer and enforce those and execute those rules through the executive branch and then the judiciary to kind of help us figure out when there are questions about what's legal and to protect our legal rights? Certainly, there are challenges in our Constitution that don't always work for everybody. Inequality remains, I think, a challenge that we find. The equal protection clause of the 14th Amendment, for example, that was passed after the Civil War, was designed to prevent discrimination between races. And we, yet, into this day, see great disparities, I think, between races in America. And one of the ways that the law has been interpreted, I think, continues to perpetuate some of that. The equal protection clause has been interpreted by courts to mean not only disparate impacts and disparate effects of the law, but intentional purpose to discriminate. And so, I think that's where some of the disconnect comes in between parts of society that advocate for a colorblind society. That means, you know, we treat everybody equally, and we don't look at race. To others who say, "But how can you ignore the fact that we have people living in poverty or people in prison at greater rate than they represent in the population generally by race." And so we think that remains a challenge for us, is how do we, you know, you can't really ignore race. And yet, the law, the equal protection clause, says that we need not only disparate impact, but also disparate purpose. And so, I think we're really working through some of those issues. It's where we see some of this disconnect in conversations about race today. You know, does it protect us from gender discrimination? We still have that. We haven't been able to pass an Equal Rights Amendment at all. And so, we still see disparities in the way the sexes are treated. There are some real tensions between things like religious liberty, on the one hand, and discrimination. We're seeing some issues with free speech on campus and free speech rights and freedom of assembly that is also allowing, you know, militant, right wing extremists to rise up on social media and attack our Congress. And so, you know, all of these rights, I think, have to be tempered. None of them are absolute. Same thing with masking and vaccines. You know, people say "You're violating my constitutional rights to due process and liberty and freedom." Well, no. They're all, you know, none of these rights are absolute. They're all tempered by other needs of society to organize ourselves in ways where we can live in safety and harmony. And so, it's always an experiment in how are we going to get along. The Constitution, it has been said, is not a suicide pact. It is kind of the guidebook for how we're going to live in a way that is true to our values of liberty, but also while maintaining public safety and harmony in a pluralistic society. 

Lisa Barry: You mentioned something a few minutes ago. You said rules of society. That Constitution embodies the rules of society. And does it sometimes feel like to you, Barbara McQuade, that what are the rules of society these days? 

Barbara McQuade: I think one of the things that causes challenges is that the law tries to write down the rules that advance the goals of society and to protect what we value. And I think the more diversity we have in those voices, the more there will be disagreement about what those rules are and what those rules should be. And so, when the Constitution was written, it was written by men who were all white, who are all wealthy, who own property. That's one world view is that group made the rules. It was pretty easy to figure out, what we all agreed on, and what our vision of the world was. But now, we respect the idea that we have a far more diverse society. We have people who are from all parts of the world, not just, you know, straight from England. We have all different kinds of minorities. We have people who are gay and straight, transgender. We have people who are disabled, and we support their rights. So, all of these people were already here, we just suppressed their voices before. Now that we want to listen to these voices. Women have a voice at the table. There's going to be disagreement about what those values are. We have lots of different religions that we have to accommodate because of the free exercise clause and the anti establishment clause of the First Amendment. And so, if we're going to accommodate all these diverse voices, there's probably going to be some disagreement about where our laws ought to be. And we should really welcome that as part of a healthy society. You know, accept the input. We have political actors who are selected by the majority, but they're always backstopped by these values about due process and free speech and equal protection that are sort of the safety net that says you need to make certain laws, but you can't go past a certain point because we care about these values. But because judges are humans and lawmakers are humans, there's always going to be, you know, a human element that can be fallible.

Lisa Barry: I know some people, and maybe you have met them as well, who carry around or pass out little mini copies of the Constitution. And I'm wondering how important or practical of a reference is it in 2021 and moving forward? 

Barbara McQuade: I always think more information is valuable. So having a copy of the Constitution or the ability to look it up online--I have it loaded on my phone--is a very good thing. It all starts with the text, but I have sometimes seen people waving it around it a little bit like a weapon because it doesn't tell the whole story. And so they might say, "I have a right to not wear a mask or to make my own decisions about vaccines." Well, to a point. It doesn't address that issue in the Constitution and it has very broad concepts like due process, but it has been interpreted by the courts in various ways. And so, unless you're also prepared to carry around all of the casebooks, the hundreds of casebooks, that have interpreted the Constitution, then that only tells part of the story. And so, with vaccines, for example, the Supreme Court ruled in 1905 in a case out of Massachusetts that was dealing with a smallpox outbreak and a mandatory vaccine, that a state does have the authority to mandate vaccines if it is necessary to fulfill a governmental interest. If there's just a rational basis for that rationally related, then that is sufficient to overcome your due process rights and your rights to your own individual liberty to decide for yourself what you want to, uh, decisions you want to make about your body, because the decision you make is going to affect the health and safety of everybody else in the community. And so, I'm sometimes a little skeptical of those people who like to wave them around. You see them it, you know, politicians will wave them around in public speeches. And, "You know, it says here, and I'll quote from it." I think that, you know, a well-informed person starts there but also has to be skeptical and do the homework about how they've been interpreted. 

Lisa Barry: As a University of Michigan law professor, do you find yourself referencing the Constitution much when teaching future lawyers? 

Barbara McQuade: Oh, you bet. All the time. So, again, it's only part of the story. I usually like to start a concept. I teach criminal law and criminal procedure and national security. And, you know, start with the constitutional language. What is this all about? What are we trying to protect here? What is the value that we're trying to protect? So, you know, we've been talking in my class about the Eighth Amendment that guarantees that we're free from excessive fines and cruel and unusual punishment. You know, what is it that we were trying to protect here? And then how it's been applied in the years since. What is the court said about mandatory minimum sentences. Mostly, OK. How about the death penalty? Has our view of that changed. What about the death penalty for certain kinds of crimes? And so, we'll see the Supreme Court put a gloss on it. Like one of the things the Supreme Court has said is that, you know, one of the ways that the Eighth Amendment can be violated is not only if a crime is particularly cruel, but if it's grossly disproportionate to the offense. That would be a way that it is unusual. So, it is always important, I think, to start with the language of the Constitution, but then to talk about the ways it's been interpreted and then also not only where we've been, but where we are, and where we might go with it. You know, again, during the time when the laws were interpreted by mostly white men of privilege, how did they see the world and do their biases come through in those interpretations? And as we confront a world where we have more information and different understandings of the law and more groups represented in the world, do we want to think about it in a different way? How can we shape the law to work better for our citizenry as we continue this journey toward a more perfect union? So, it absolutely matters, but it's not the whole story. And I think those who look only to the text are missing a big part of the rest of the legal history of our country. 

Lisa Barry: I'll bet those classroom conversations led by Barbara McQuade are fascinating. And you can hear more of her and her co-hosts of Sisters in Law, the relatively new podcast. It's been a few months. And we're very grateful for you talking to us here on this Constitution Day, 2021. Barbara McQuade, thank you so much for joining us here on WEMU. 

Barbara McQuade: Thank you, Lisa. 

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— Lisa Barry is the host of All Things Considered on WEMU. You can contact Lisa at 734.487.3363, on Twitter @LisaWEMU, or email her at lbarryma@emich.edu

Lisa Barry was a reporter, and host of All Things Considered on 89.1 WEMU.
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