An Obituary for Originalism: On Erwin Chemerinsky’s “Worse Than Nothing”
By Stephen RohdeNovember 23, 2022
Worse Than Nothing: The Dangerous Fallacy of Originalism by Erwin Chemerinsky
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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