[This book is a detailed critique of the judicial philosophy to
which the current majority of the Supreme Court of the United States
adheres.]
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PORTSIDE CULTURE

AN OBITUARY FOR ORIGINALISM  
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Stephen Rohde
November 23, 2022
Los Angeles Review of Books
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_ This book is a detailed critique of the judicial philosophy to
which the current majority of the Supreme Court of the United States
adheres. _

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_Worse Than Nothing
The Dangerous Fallacy of Originalism_
by Erwin Chemerinsky
Yale University Press
ISBN: 9780300259902

ALEXANDER HAMILTON predicted that the US Supreme Court would be the
“least dangerous branch” of government because it had “no
influence over either the sword or the purse.” Judged by its most
recent spate of unprecedented ultraconservative rulings, the court may
now in fact be the most dangerous branch.
In the extraordinary 2021–22 term that ended this past June, the
court overturned the constitutional right to abortion established in
1973 in_ Roe v. Wade _and reaffirmed in 1992 in_ Planned Parenthood of
Southeastern Pennsylvania v. Casey_; it struck down, as a violation of
the Second Amendment, a century-old law that had required applicants
for licenses to carry concealed weapons in public to establish
“proper cause”; it held that a football coach employed by a public
high school had a constitutional right to offer prayers at the 50-yard
line on school property after games, often with public school students
present; it ruled that under a program funding tuition at public and
secular private schools, the state of Maine was also required to fund
religious schools; it held that the City of Boston was required to
allow a private group to raise a Christian flag on public property in
front of city hall, as part of a program in which nonreligious groups
used the flagpole to celebrate various causes; it limited the
Environmental Protection Agency’s ability to regulate carbon
emissions from power plants; and it narrowed the jurisdiction of
American Indian tribes to prosecute non-Indians for crimes committed
on reservations in Oklahoma.

While the majority in _Dobbs v. Jackson Women’s Health Organization
_claimed that its ruling “does not undermine” decisions involving
“marriage, procreation, contraception, [and] family
relationships,” the vehement dissent signed by Justices Stephen
Breyer, Elena Kagan, and Sonia Sotomayor pointedly observed that
Justice Clarence Thomas begged to differ. In his concurring opinion,
Thomas wrote, “[I]n future cases, we should reconsider all of this
Court’s substantive due process precedents, including _Griswold
_[contraception], _Lawrence _[same-sex intimate relations], and
_Obergefell_ [same-sex marriage]” and “overrul[e] these
demonstrably erroneous decisions.” (Notably, Thomas, who is married
to a white woman, failed to include _Loving v. Virginia_, in which the
court struck down the prohibition on interracial marriage.)

The majority achieved these results by simultaneously imposing the
doctrine of originalism as the controlling method of interpreting the
Constitution and by reversing long-standing precedents, contrary to
the principle of stare decisis.

In his timely and devastating refutation of originalism, _Worse Than
Nothing: The Dangerous Fallacy of Originalism_, Erwin Chemerinsky,
dean of the University of California, Berkeley, School of Law and
Jesse H. Choper Distinguished Professor of Law, calls originalism “a
dangerous approach to constitutional law that would jeopardize many
basic rights and advances in equality” which is likely to
“dominate the Court’s interpretation of the Constitution for a
long time.” He sets out to “unmask” the “nonsense” of
originalism, which is “just the rhetoric conservative justices use
to make it seem that they are not imposing their own values, when they
are doing exactly that.”

Chemerinsky is eminently qualified to mount this critique. He has
taught constitutional law and federal practice for over 40 years. He
has argued seven cases before the Supreme Court and has filed briefs
as counsel or amicus curiae in scores of others. In 2017, _National
Jurist_ magazine named him the most influential person in legal
education in the United States. Among his 15 books, this is not his
first criticizing the Supreme Court. As he made clear in _Presumed
Guilty_: _How the Supreme Court Empowered the Police and Subverted
Civil Rights_; _The Conservative Assault on the Constitution_; _The
Case Against the Supreme Court_; _Closing the Courthouse Door: How
Your Constitutional Rights Became Unenforceable; _and _We the People:
A Progressive Reading of the Constitution for the Twenty-First
Century, _he is highly critical of the judicial philosophies and
decisions of the conservative members of the court.

Despite originalists pretending that their theory was ordained at the
founding, Chemerinsky traces originalism to a 1971 law review article
written by Robert Bork, who in 1987 would suffer a humiliating
rejection as a nominee to the Supreme Court. But Bork, who died in
2012, may have had the last laugh. In his article, he argued that the
Supreme Court should protect only those rights that are explicitly
stated in the Constitution or were clearly intended by its drafters.
“The judge must stick close to the text and the history, and their
fair implications, and not construct new rights,” Bork wrote. He
argued that the court was wrong to protect a right of privacy —
including a right to purchase and use contraceptives — because these
rights are not mentioned in the Constitution and, according to him,
were not intended by the Framers.

In words that are already proving to be chillingly prescient, soon
after President Ronald Reagan nominated Bork, Senator Edward Kennedy
described what “Robert Bork’s America” would look like:

[A] land in which women would be forced into back-alley abortions,
blacks would sit at segregated lunch counters, rogue police could
break down citizens’ doors in midnight raids, schoolchildren could
not be taught about evolution, writers and artists would be censored
at the whim of government, and the doors of the federal courts would
be shut on the fingers of millions of citizens for whom the judiciary
is — and is often the only — protector of individual rights that
are the heart of our democracy.

Bork was rejected, but originalism had already taken hold within
conservative Republican circles. As attorney general under Reagan,
Edwin Meese III delivered a speech in 1985 before the Federalist
Society endorsing a “jurisprudence that seeks fidelity to the
Constitution — a jurisprudence of original intention,” claiming it
is “not a jurisprudence of political results” but instead is a
“jurisprudence that in our day seeks to de-politicize the law.”

Justice Antonin Scalia would become the primary exponent of
originalism during his three decades on the court. In case after case,
he claimed that originalism ensured “a rock-solid, unchanging
Constitution.” When non-originalists argued that the Constitution
was a “living” document to be interpreted according to evolving
standards of decency and justice, Scalia was fond of responding that
the Constitution is “dead, dead, dead.” Chiding his critics for
not having their own theory, he boasted that at least originalism was
a theory of interpretation. In response, Chemerinsky titled his book
_Worse Than Nothing_.

¤

Chemerinsky frames his attack on originalism by describing five
problems that he believes render the theory a “dangerous fallacy.”

First is the “Epistemological Problem”: “For the vast majority
of constitutional issues that arise, there is not a clear original
meaning. With so many people involved in drafting and ratifying any
given provision, there cannot be.” The Framers often disagreed
during and after drafting of the Constitution, as Chemerinsky
demonstrates with the many disagreements between Hamilton and James
Madison. Chemerinsky writes that there “is not a concrete and
knowable ‘intent of the Framers’ waiting to be discovered;
inevitably, it is a choice of whose views count and how to
characterize them. […] [T]he historical materials are too incomplete
to support authoritative conclusions.” The _Journal of the
Constitutional Convention_ is neither complete nor completely
accurate. In addition, on many issues, the Framers themselves hadn’t
even considered the matter. On the very issue of constitutional
interpretation, the Constitution is silent on whether federal courts
have the power to declare laws and executive actions unconstitutional.

Faced with these dilemmas, Scalia and other originalists moved away
from the original “intent” of the Framers to the original
“meaning” of the words in the Constitution, combing through
18th-century dictionaries, correspondence, treatises, and other
written sources. But Chemerinsky points out that, as with any language
in every era, the meaning of words is open to a variety of
interpretations, especially such broad constitutional terms as “due
process,” “equal protection,” “cruel and unusual
punishment,” and the like. As he demonstrates with several telling
examples, “the multiplicity of sources make it a fiction to say that
there was one original meaning to any constitutional provision.”
Chemerinsky need venture no further than Scalia himself, who in a rare
moment of candor admitted that “many of the reports of the ratifying
debates, for example, are thought to be quite unreliable.”

Chemerinsky also points to what one constitutional scholar called
amateur “‘law office’ history.” In the hands of originalists,
“[t]he Court chooses its reading of history and selects those
practices that confirm the conclusion it wants,” he writes. “It
then claims that its ruling is based on history, when history was only
an after-the-fact justification for conclusions reached on other
grounds.” For one example, Chemerinsky offers the recent series of
decisions in which the court, interpreting the Civil Rights Act of
1871, granted judges absolute immunity from suits for money damages
based on the court’s assertion that by 1871, judges had been given
absolute immunity from such suits. Yet a closer look reveals, in fact,
that by 1871, judges had absolute immunity in only 13 of the 37 states
that existed then. It’s apparent that originalist justices are
indulging in amateur “courtroom”
history.             

Originalists and non-originalists agree that constitutional
interpretation must begin with the text of the document. But
originalists pretend that their method of interpretation is
value-free. “This desire for value-neutral judging is an impossible
quest,” Chemerinsky writes. “Balancing of competing interests is
inescapable, and a justice’s ideology and life experiences
inevitably determine how he or she — or anyone interpreting the
Constitution — strikes that balance. This is a crucial flaw in the
claims of originalists and others who claim to have a way to interpret
the Constitution that is independent of the justices’ values.”

The second flaw with originalism that Chemerinsky explores is the
“Incoherence Problem.” As he sees it, and as he convincingly
demonstrates, “the Framers likely did not want their views to
control constitutional interpretation.” Ironically, following the
“original meaning” of the Constitution “requires abandoning
originalism as a method of constitutional interpretation. This, in
short, is the incoherence problem.”

“There is no indication that there was an original intent to
interpret the Constitution according to its original meaning,”
Chemerinsky writes. “Quite the contrary: there is strong evidence
that the Framers of the Constitution never meant their own intent to
be controlling.” He cites numerous sources for this conclusion: for
example, Madison maintained that the Philadelphia proceedings “can
have no authoritative character” until “life and validity were
breathed into it by the voice of the people,” speaking through the
ratifying conventions.

Given the paucity of the records of the Constitutional Convention and
subsequent ratifying conventions, how could the Framers intend future
generations to be bound by their unrecorded intentions and
deliberations? The Framers did not publish a record of the Convention.
They maintained the confidentiality of their proceedings until 1818
when John Quincy Adams decided to organize and publish them. Madison
made notes of no more than 10 percent of the Convention, which he
treated as his private property because he thought the proceedings
“could never be regarded as the oracular guide in expounding the
Constitution.” The principal record of the debate of the Bill of
Rights in the House was written by someone Madison described as
“‘a votary of the bottle’ whose reports ‘abound in errors;
some of them very gross.’” No one recorded the debates in the
Senate or state legislatures.

Chemerinsky finds “strong evidence” that “those who wrote the
Constitution preferred that their views _not_ be controlling.” They
used general language that would gather meaning from experience. This
is why Chief Justice John Marshall famously declared, “We must never
forget, that it is a constitution we are expounding,” a constitution
“intended to endure for ages to come.” In Federalist No. 37, in
which he sought public support for the Constitution, Madison wrote:
“All new laws, though penned with the greatest technical skill […]
are considered as more or less obscure and equivocal, until their
meaning be liquidated and ascertained by a series of particular
discussions and adjudications.” Likewise, Thomas Jefferson insisted
that constitutions ought not be regarded with “sanctimonious
reference” and that law and institutions must develop “hand in
hand with the progress of the human mind.”

Indeed, the very text of the Constitution refutes the originalist idea
that no rights are protected unless explicitly enumerated in that
text. The Ninth Amendment explicitly provides that “[t]he
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.” At a
loss to reconcile the express terms of the Ninth Amendment with his
newly minted theory of originalism, Bork belittled the Ninth Amendment
at his confirmation hearing as nothing more than an “inkblot” on
the Constitution.

Chemerinsky concludes that “originalism provides no coherent way of
resolving differences between the text and the original understanding.
Originalists pick and choose the result they prefer, which inevitably
corresponds to their ideological views.”

The “Abhorrence Problem” is the third flaw Chemerinsky identifies.
He points out that the Constitution was written in the late 18th
century for a largely agrarian society where slavery existed in many
states and only white males with property had the right to vote. “It
makes no sense,” Chemerinsky argues, “to say that the Constitution
is limited to the understandings at the time of its drafting or of
those who adopted the amendments after the Civil War.” He
demonstrates how originalism would lead to abhorrent results in a wide
array of areas involving the most fundamental aspects of human
affairs. One example tells the story.

According to originalism, the landmark decision in _Brown v. Board of
Education _that struck down the racially discriminatory doctrine of
“separate but equal” and cleared the way for decades of
advancement in racial equality was wrongly decided. Originalism asks
whether in 1868 the original meaning of the 18th Amendment protected
racial equality in education. For originalists, the answer is no.
“The evidence shows” Chemerinsky writes, “that the people who
proposed, drafted, and ratified the Fourteenth Amendment from 1866 and
1868 did not believe that they were doing away with segregated
schools.” The same Congress that ratified the 14th Amendment also
voted to segregate the District of Columbia public schools. In the
unanimous decision in _Brown_, Chief Justice Earl Warren explicitly
rejected originalist thinking:

In approaching this problem, we cannot turn the clock back to 1868
when the Amendment was adopted, or even to 1896 when _Plessy v.
Ferguson _was written. We must consider public education in the light
of its full development and its present place in American life
throughout the Nation. Only in this way can it be determined if
segregation in public schools deprives these plaintiffs of the equal
protection of the laws.           

The Constitution’s Preamble famously speaks of forming “a more
perfect Union,” promoting the “general Welfare,” and securing
“the Blessings of Liberty to ourselves and our Posterity.” It is
abhorrent to interpret the Constitution according to a recently
contrived theory that would reverse transformative decisions such as
_Brown v. Board of Education_, decisions which have helped dismantle
systemic racism and secure equal educational opportunities for
millions of American children.           

Chemerinsky calls the fourth flaw with originalism the “Modernity
Problem.” “To state the obvious,” Chemerinsky points out, “our
world is vastly different from that which existed at the nation’s
beginning,” and therefore there are “countless constitutional
questions for which originalism can provide no answer.” He discusses
three: whether the Fourth Amendment applies to surveillance
technology, how the country’s enormous growth in size and complexity
changes the way it must be governed, and how free speech applies to
the media of the 20th and 21st centuries.

Overall, the daunting modernity problem faced by originalists is that
“looking solely at original meaning” — if it could ever be
located — “in interpreting a constitutional provision leaves one
no way to deal with modern problems that could not have been fathomed
by the Constitution’s drafters.” Confronted with this dilemma,
originalist judges simply do what non-originalist judges do: they read
constitutional provisions in an abstract fashion and by analogy and
analysis apply the history, spirit, and values reflected in those
provisions to whatever contemporary situation the case at hand
presents. Consequently, the theory of originalism plays no role.

Chemerinsky characterizes the fifth and final flaw in originalism as
the “Hypocrisy Problem.” He is particularly effective in showing
that conservative justices “use originalism when it justifies
conservative decisions, but they become non-originalist when doing so
serves their ideological agenda.” Originalism “is not a theory of
judging at all but only a rhetorical ploy to make it appear that
decisions are based on something other than political ideology.” To
illustrate his point, Chemerinsky focuses on the invalidation of a key
provision of the Voting Rights Act, the 11th Amendment and sovereign
immunity, the right of corporations to spend unlimited sums in
election campaigns, and affirmative action programs.

In _Shelby County v. Holder_ (2013), in a 5–4 decision, the
conservative majority held that a key provision of the Voting Rights
Act of 1965 was unconstitutional. They reached this result by
abandoning originalism and inventing a new constitutional right for
“equal state sovereignty” that appears nowhere in the text of the
Constitution and is in fact contrary to the original understanding of
the 14th Amendment.

The 11th Amendment provides that federal courts have no jurisdiction
over lawsuits against a state “by Citizens of another State, or by
Citizens or Subject of any foreign state.” Although the meaning and
intent of this provision is clear, conservative justices in case after
case have abandoned originalism and precluded virtually all suits
against state governments, including claims that a state government
has violated the Constitution.

In _Citizens United v. Federal Election Commission_ (2010), the
conservative majority abandoned both originalism and stare decisis by
overruling a decision decided only seven years earlier upholding key
provisions of federal campaign finance law. The conservatives held
that the First Amendment protects the right of corporations to spend
unlimited amounts of money to support or oppose candidates in election
campaigns despite the fact that those “who drafted and ratified the
amendment could not have imagined campaign spending as it exists in
the twenty-first century, let alone the wealth of modern corporations
and their ability to spend that wealth to influence elections.”

And when it comes to affirmative action, yet again originalists such
as Justices Scalia and Thomas have repeatedly abandoned originalism in
their headlong campaign to dismantle such programs. Since _Regents of
the University of California v. Bakke _(1978), the Supreme Court has
consistently upheld the consideration of race as one factor in college
admissions to serve the goal of achieving diversity. But Scalia and
Thomas have consistently dissented in those cases, despite the fact
that from an originalist standpoint there is nothing in the 14th
Amendment limiting the federal government’s ability to enact
programs to benefit racial minorities. In fact, citing post–Civil
War history and several constitutional scholars, Chemerinsky
establishes that “the Reconstruction era Congresses produced a vast
array of laws treating blacks preferentially, indicating its view that
federal affirmative action violated no constitutional norms.” As
Chemerinsky sees it, “[a]ffirmative action is a very powerful
example of how conservative political ideology is far more important
to these justices than their commitment to originalism.” Ominously,
bolstered by a six-member arch-conservative supermajority, in the
current 2022–23 Term, the Supreme Court is scheduled to reconsider
affirmative action in both private and public higher education.

Chemerinsky ably reveals the hypocrisy of originalism. The willingness
of its proponents “to abandon originalism when it fails to produce
conservative results shows that the theory was never the constraint on
the judiciary that its boosters promised.” Instead, it is “simply
convenient rhetoric, used by conservatives to make it seem that their
decisions are a product of something other than their political
views.”

¤

“Throughout American history the Supreme Court has rejected
originalism. Never has a majority of the justices professed to believe
in it.” Sadly, Chemerinsky wrote those words before five of the
conservative justices on the court installed originalism as the only
way to interpret the Constitution in _Dobbs v. Jackson Women’s
Health Organization_, overturning_ Roe v. Wade _and eliminating a
constitutional right to reproductive freedom. Yet he is so attuned to
the agenda of the originalists now in control of the court that he
correctly predicts exactly what the court did regarding the
Mississippi abortion restrictions at stake in _Dobbs_:

I expect that the Court will uphold the Mississippi law, saying that
abortion is not mentioned in the Constitution and is not part of its
original meaning. They will say that_ Roe v. Wade_ invented a new
constitutional right and usurped the political process. Because the
Constitution is silent about abortion, they will argue that the matter
should be resolved politically, not by the judiciary.

We all need Chemerinsky’s crystal ball.           

Chemerinsky concludes his clear and convincing refutation of
originalism by endorsing the alternative approach to interpreting the
Constitution that, by and large, has prevailed during the entire
existence of the Supreme Court. He urges the court to look to multiple
sources in interpreting the Constitution, including “the Framers’
intent if it can be known, the original meaning to the extent that it
can be ascertained, the structure of the Constitution, historical
practices, constitutional and social traditions, precedent, and what
is best for society.” Citing numerous examples, he defends
non-originalism for these reasons:

[I]t is desirable to examine many different sources and considerations
in deciding the meaning of a constitutional provision; it is desirable
that the Constitution be a living document that evolves by
interpretation as well as amendment; and it is desirable to make
constitutional decisions with candor and transparency.

Chemerinsky makes only passing reference to the visionary role Justice
William J. Brennan Jr. played in exposing the flaws in originalism.
His incisive analysis deserves our attention. Brennan was appointed to
the court by President Dwight D. Eisenhower in 1956. With almost 30
years’ experience on the court, in 1985 Brennan outlined his
approach to originalism in a frequently cited lecture at Georgetown
University. He explained that the Constitution, as well as the Bill of
Rights and the 13th, 14th, and 15th Amendments, embodies “the
aspirations to social justice, brotherhood, and human dignity that
brought this nation into being.” Acknowledging that justices “are
not platonic guardians appointed to wield authority according to their
personal moral predilections,” he borrowed the words of Justice
Robert Jackson, who in _West Virginia State Board of Education v.
Barnette _(1943) explained that the burden of judicial interpretation
was to translate “the majestic generalities of the Bill of Rights,
conceived as part of the pattern of liberal government in the
eighteenth century, into concrete restraints on officials dealing with
the problems of the twentieth century.”           

“We current Justices read the Constitution in the only way that we
can: as Twentieth Century Americans,” Brennan explained:

We look to the history of the time of framing and to the intervening
history of interpretation. But the ultimate question must be, what do
the words of the text mean in our time? For the genius of the
Constitution rests not in any static meaning it might have had in a
world that is dead and gone, but in the adaptability of its great
principles to cope with current problems and current needs.

Brennan added that constitutional interpretation “must account for
the transformative purpose of the text. Our Constitution was not
intended to preserve a preexisting society but to make a new one, to
put in place new principles that the prior political community had not
sufficiently recognized.” He had no patience for limiting the
interpretation of the Constitution by the strictures of originalism:
“It is a view that feigns self-effacing deference to the specific
judgments of those who forged our original social compact. But in
truth it is little more than arrogance cloaked in humility.”

Brennan pointedly observed, as if he were speaking directly to our
time and particularly to the arguments of today’s ultraconservative
supermajority,

[that] [w]hile proponents of this facile historicism justify it as a
depoliticization of the judiciary, the political underpinnings of such
a choice should not escape notice. A position that upholds
constitutional claims only if they were within the specific
contemplation of the Framers in effect establishes a presumption of
resolving textual ambiguities against the claim of constitutional
right.

This, in fact,

is a choice no less political than any other; it expresses antipathy
to claims of the minority to rights against the majority. Those who
would restrict claims of right to the values of 1789 specifically
articulated in the Constitution turn a blind eye to social progress
and eschew adaptation of overarching principles to changes of social
circumstance.

Brennan drove his final nail in the coffin of originalism by rebutting
the notion that it simply and humbly serves the lofty goals of
democracy, leaving the question of what rights should be protected up
to the will of the majority. “Unabashed enshrinement of majority
will would permit the imposition of a social caste system or wholesale
confiscation of property so long as a majority of the authorized
legislative body, fairly elected, approved. Our Constitution could not
abide such a situation” because it is “the very purpose of a
Constitution — and particularly of the Bill of Rights — to declare
certain values transcendent, beyond the reach of temporary political
majorities.”

Brennan concluded his lecture by describing the principles and values
embedded in the Constitution on which he based his own interpretation
of its provisions, which are closely aligned with those espoused by
Chemerinsky: “For the Constitution is a sublime oration on the
dignity of man, a bold commitment by a people to the ideal of
libertarian dignity protected through law.”

Chemerinsky’s writing and analysis are so clear and understandable,
supported by illuminating examples and apt case references, that
readers will be transported into his classroom to enjoy a semester’s
worth of learning for the price of this lucid and compelling book.

But Chemerinsky is not optimistic. He believes originalism will hold
sway on the Supreme Court for years to come. We know that many
obituaries are written well in advance of the death of their subjects.
Chemerinsky has written the definitive obituary of originalism.
Providence will dictate how long each current justice will continue to
serve, and politics will dictate who will replace them. Nothing less
than the fate of the Constitution and the American people is weighing
in the balance.

¤

_Stephen Rohde is a writer, lecturer, and political activist. For
almost 50 years, he practiced civil rights, civil liberties, and
intellectual property law._
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* conservative legal theory
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* U.S. Constitution
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