If Originalism Is Going to Be Displaced, Critics Must Do Better than Dean Chemerinsky Seems to Be Doing

Posted in: Constitutional Law

The past term at the Supreme Court will certainly be known for the Dobbs decision overruling Roe v. Wade and Planned Parenthood v. Casey, and the Bruen ruling invalidating a New York gun regulation as violative of the Second Amendment. But more fundamentally, and what yokes these two blockbuster cases together, this past term marks the clear commitment by a majority of Justices to an originalist methodology of constitutional interpretation. Originalism means different things to different folks, but for these purposes we take to be the essence of modern originalism the idea that constitutional text and history are paramount, and that the meaning of the Constitution’s words and phrases should be informed and limited by the public understandings of those words and phrases that were prevailing at the “origin” of these words and phrases, that is, the time at which the provisions in question were adopted. And when a constitutional claim is not grounded on text that embodies any particular value—as, say, in substantive due process or Ninth Amendment settings—then originalists insist, before acknowledging a claim of constitutional right, that the country’s history and tradition reveal a clear national consensus that the activity in question is immune from government interference.

Originalists recognize that other modes of constitutional interpretation—such as structural analysis of various institutional relationships the Constitution creates, and due respect for past judicial, congressional and presidential precedent—are relevant. But the Constitution’s very words, understood in the historical context in which they were enacted, will often be the most important interpretive factor.

Originalism certainly has its critics. One is UC Berkeley Law Dean Erwin Chemerinsky, whose new book, Worse than Nothing: The Dangerous Fallacy of Originalism, seeks to make the case against the constitutionally originalist interpretive approach now firmly (if not always intellectually consistently) embraced by a majority of Justices. (In this regard, it is no coincidence that the one conservative Justice who did not join the Dobbs opinion even though he embraced its bottom line was Chief Justice John Roberts, the least originalist of the six Republican appointees.) We have not yet had a chance to carefully read Dean Chemerinsky’s book, and thus cannot say whether it makes a valuable contribution. But a recent article he penned in The Atlantic entitled Even the Founders Didn’t Believe in Originalism, which purports to tease some of the book’s themes and arguments, was to us disappointing.

The Atlantic piece makes a large number of assertions and claims, and we cannot hope to cover all of them here (much less all of the areas addressed in the much longer book), but we instead focus on three foundational areas where we strongly disagree with Dean Chemerinsky. (A fourth important area of possible disagreement—Dean Chemerinsky’s intermittent characterization of originalism as focused on the subjective, behind-closed-doors, intentions of constitutional drafters rather than the original public understandings of the document’s words embraced by people who discussed and ratified the proposals—seems mooted by Dean Chemerinsky’s subtle shift three-quarters-way through the Atlantic essay. He seems to concede or at least seems willing to assume that, as we believe is true, modern originalists do, or should, eschew closed-door intentions; what matters for most originalists is the public understandings of the constitutional terms in question, not the hidden, personal objectives of provisions’ drafters.)

First is Dean Chemerinsky’s characterization (in the very first paragraph) of originalism as an “obscure legal theory” that “first came about in the 1970s.” Presumably this characterization is meant to marginalize originalism as faddish. But can Dean Chemerinsky be serious in suggesting that originalism’s core tenets of textual and historical focus are products of the last few generations only? Although the term “originalism” may not have been used before the last half century, the idea that the Constitution’s meaning should be informed by the understandings of the people who enacted its textual provisions goes all the way back the beginnings of judicial review. The Court during the leadership of Chief Justice John Marshall made use of original public meanings of contested constitutional provisions in almost all of the nineteenth century landmark cases that make up the canon of virtually every introductory constitutional law course: Marbury v. Madison, McCulloch v. Maryland, Martin v. Hunter’s Lessee, and Gibbons v. Ogden, to name just a few. Moving forward in constitutional history, the greatest originalist on the Court in the 1900s was not Antonin Scalia toward the end of the century, but the famously liberal New Dealer Hugo Black two generations earlier. And many of Black’s most important originalist rulings—for example the watershed Wesberry v. Sanders 1964 case ushering the era of one-person, one-vote for U.S. House of Representative elections—were joined by many other famous liberal Justices such as Earl Warren and William Brennan. No wonder, then, that when nominee Elena Kagan was, in her Senate confirmation hearings in this, the twenty-first, century, discussing the importance of the Constitution’s words themselves in the exercise of judicial review she quipped that “we are all textualists now.” Turns out we (or at least the Justices of the Court) have always been originalists of some sort or another.

And mention of the essence of judicial review brings us to the second completely untenable thing Dean Chemerinsky asserts: that judicial review in the federal courts is itself anti-originalist because, as he puts it, “[n]othing indicates that the original meaning of the Constitution was to create judicial review” and (relatedly) the Constitution’s text itself “says nothing whatsoever about a power to declare laws or executive acts unconstitutional.” Really? How about Article III’s plain statement that the “judicial power [of the federal courts] shall extend to all cases arising under the Constitution.” As Chief Justice Marshall argued in the famous Marbury v. Madison (originalist) opinion explaining and defending judicial review, how can a case “arise under the Constitution” unless someone is claiming that the Constitution has been violated by a law or executive action? And how can a court decide such a case without interpreting and giving effect to the Constitution?

As to these questions, here is what Marshall says about the “peculiar expressions” of Article III:

Could it be the intention of those who gave this power [to hear cases arising under the Constitution] to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

And as to the Constitution’s bottom-line answer to these questions, namely, whether a court, once it invokes the “judicial power” to look into the constitutional matter, must prefer the Constitution over inconsistent laws and actions taken by government officials, Marshall himself again clearly invokes constitutional text, this time the Supremacy Clause of Article VI:

in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

It is hard for us to fathom how Dean Chemerinsky, who has diligently taught law students constitutional law for decades (and who, presumably, has assigned Marbury to those students), can assert blithely that the Constitution’s words say “nothing” about the power to vindicate the Constitution over inconsistent statutes and executive acts. This outlandish assertion contravenes the lesson Chief Justice Marshall long ago taught, to read the Constitution carefully, and as an entire document. Whether one reads with care the Constitution itself, or relies on Marbury’s guided tour of its text, the words that in plain terms provide for judicial review (to say nothing of the background historical understandings by the Constitution’s ratifiers that federal judicial review would exist) are there for any open-minded clear thinker to see.

None of this is to say that judicial review is not a controversial constitutional topic. Both of us, like most constitutional scholars, we expect, discuss its controversial aspects when we teach constitutional law. But the controversies that exist relate to, among other things, the extent to which judicial review does or ought to crowd out constitutional interpretive powers of other branches, the frequency with which judicial review is deployed modernly, and the related question of whether some deference to the other branches’ (implicit) constitutional understandings should be respected, and the sometimes freeform or seemingly result-oriented nature of judicial review in cases whose constitutional interpretations seem divorced from the text, history and structure of the Constitution itself. But the nub of judicial review—that federal courts can and must, in cases before them, prefer the Constitution over inconsistent laws and executive actions, and use the judicial power to effectively declare (explicitly or implicitly) such laws and executive actions unconstitutional—is not controversial to the modern first-rate constitutional scholars we know, precisely because (among other reasons) it is in fact firmly grounded in constitutional text.

Third, and finally (for purposes of this necessarily short column), Dean Chemerinsky describes the “task of determining original meaning” as “impossible,” because “so many people with countless views [] were involved in the state ratifying conventions.” Here we think Dean Chemerinsky misunderstands or at least overstates the originalist project. (He also seems to overlook the role that evidence besides what was generated in ratifying conventions plays in unearthing original public meaning.) To be sure, sometimes discerning a meaningfully shared understanding of a constitutional provision may be challenging if nigh hopeless. Other times, when, for example, the vast majority of influential leaders, essayists and other public commentators at the time, both in and outside of ratifying conventions, were largely articulating the same themes, it may not be so difficult. But in either case, originalism is not always about—and its utility and justifications should not be understood in terms of—coming up with a single right interpretive answer as regards a constitutional provision. Often originalism will rule some possibilities in, and others out: it will narrow the choice of legitimate interpretive options. At that point the value of originalism in a particular dispute—while significant—may run out, leaving the judge to employ other tools, such as precedent, pragmatism, and structural constitutional values, to choose between the possibilities that originalism has not excluded.

Posted in: Constitutional Law

Tags: originalism

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