Original Sins

REVIEW: ‘Worse than Nothing: The Dangerous Fallacy of Originalism’

Photo by Alex Wong/Getty Images
October 23, 2022

Erwin Chemerinsky, law school dean at the University of California-Berkeley, is an accomplished, extensively published scholar. In 2017 he was named America’s most influential legal educator by National Jurist magazine. Formerly the founding dean of the law school at the university’s Irvine campus, he received awards from both the Anti-Defamation League and the American Association of Law Schools, and has litigated cases before the Supreme Court.

Considering his august academic standing, Chemerinsky is also, as the title of his latest book indicates, remarkably opinionated and sometimes rabidly partisan: I know of no other respected contributor to the debate over whether interpretations of America’s fundamental law should be guided by the intent of its authors or ratifiers who has gone so far as to dismiss his learned opponents’ views as "worse than nothing."

Before proceeding, a word of explanation is in order. The term "originalism," reportedly coined by one of its previous academic critics, Paul Brest, in the 1980s, refers to a movement that developed among conservatively inclined legal scholars in the last decades of the 20th century as a reaction against what were perceived as the abuse of the Supreme Court’s power of constitutional interpretation under chief justices Earl Warren and Warren Burger (continuing at a slower pace under chief justices William Rehnquist and John Roberts) so as to read into the Constitution all sorts of rights that had no evident grounding in its text—and which were seen by many Americans as destructive of the moral foundations of our civic life.

Take, for example, Roe v. Wade’s inventing a constitutional right to abortion; the 2015 ruling in Obergefell v. Hodges establishing a right to same-sex marriage; earlier decisions providing constitutional protection to pornographic materials, treated as forms of "speech"; others transforming the First Amendment’s prohibition on the establishment of religion into a requirement of strict government neutrality between religion and irreligion, such that the reading of a nondenominational blessing at a public middle-school graduation was banned (lest it offend the sensibilities of agnostics or atheists); and the expansion of the rights of accused criminals, including the application of the "exclusionary rule" to state and local proceedings, weakening the ability of courts to convict and punish them.

Rather than a novel theory, originalism reflected what most judges had traditionally thought their duty to be, in accordance with the role assigned them by Alexander Hamilton in Federalist 78: to defend the Constitution against depredations by the elected branches of federal and state governments. As Hamilton explained, such an authority presupposed that the Constitution has a fixed, if broad, meaning; without such a meaning, judicial overriding of the policies of elected officials would be incompatible with republican self-government.

The debate over originalism went public in an exchange during the 1980s between Attorney General Edwin Meese, explaining the Reagan administration’s determination to restore Supreme Court jurisprudence to its constitutional role, and Justice William Brennan, who assailed the "presumption" of anyone who thought he could determine a single meaning or intent in the Constitution’s text, and who held that, in any event, it was up to successive generations of judges to reinterpret the Constitution in a way that adapted it to changing mores—for instance, by ruling capital punishment unconstitutional under the Eighth Amendment’s ban on "cruel and unusual punishments," despite the fact that its practice is assumed elsewhere in the Bill of Rights.

Chemerinsky’s latest book—following previous tomes adopting a similar orientation—takes up where Brennan left off. Its publication was provoked by Donald Trump’s having named three originalist judges to the Supreme Court, giving it an originalist majority for the first time since before the Warren era. (The most celebrated, or notorious, outcome of that development, anticipated by Chemerinsky, was the Court’s Dobbs ruling, overturning Roe for its lack of textual grounding, and effectively turning the abortion issue back to the elected branches of the state or, possibly, the federal government.)

Chemerinsky devotes five chapters to the "problems" of originalism: the "Epistemological Problem" (the impossibility of determining a fixed meaning or intent to many constitutional provisions); the "Incoherence Problem" (the fact that the constitutional text nowhere explicitly authorizes federal courts to judge the constitutionality of national legislation, even though originalists want courts to retain that power); the "Abhorrence Problem" (the fact that if it weren’t for the Court’s flexible interpretation of the Constitution, all sorts of abhorrent policies ranging from racial segregation to the punishment of "seditious libel" and religious heterodoxy might still be with us); the "Modernity Problem" (the need to go beyond the Constitution’s text in order to adapt it to a changing world, e.g., extending the Fourth Amendment’s ban on unreasonable searches and seizures to cover wiretapping); and the "Hypocrisy Problem" (the fact that justices who profess originalism depart from it, in Chemerinsky’s view, when doing so conforms to their ideological beliefs).

The first problem with Chemerinsky’s argument is that he turns originalists into practitioners of a mechanistic jurisprudence that denies any need for the exercise of judgment, or room for debate, in interpreting the Constitution. But this is far from the case. It is true that nowadays, both Republican and Democratic nominees to the Court have to portray their views in that way during Senate hearings, to avoid being labeled "activists." (Hence, Justice Sonia Sotomayor’s pledge to rule purely on the basis of the text of the laws and Constitution, and Chief Justice Roberts’s representation of a justice’s role as purely that of a neutral "umpire"—to say nothing of liberal justice Elena Kagan’s claim that "we are all originalists now.")

But informed observers recognize these statements as temporary, rhetorical window-dressing. Throughout our nation’s history, judges (and commentators) have appreciated that the process of constitutional interpretation requires an exercise of deliberation and judgment, about which reasonable persons may disagree. What is in question—and what has provoked the originalist challenge—is whether there are any limits to what judges are entitled to read into the text. Certainly, numerous rulings by the Warren, Burger, Rehnquist, and Roberts courts, including those mentioned above, made that question plausible.

Another flawed argument made by Chemerinsky against originalism is the stock observation that it is impossible to discern a single intent underlying many of the Constitution’s provisions, whether one looks to the text itself, to records of the Constitutional Convention or the congressional debates leading to the 14th Amendment, or statements made in the state-ratifying conventions. This, too, is a straw man. No serious originalist ever claimed that there is a single, unequivocal intent behind every clause of the Constitution—especially the Bill of Rights and the 14th Amendment (which are typically framed in broader language than the document’s unamended text).

Just as in legal interpretation, judges who adhere to originalism (or more precisely, textualism) will often disagree about the text’s meaning in a particular case, especially in the light of changing circumstances. (For instance, to choose one of Chemerinsky’s examples, how does the First Amendment’s free-speech guarantee apply to electronic communications?) Such devoted originalists as justices Clarence Thomas and Antonin Scalia—Chemerinsky’s bêtes noires—differed over whether the First Amendment invalidates laws prohibiting flag-burning, treated (by Scalia) as a form of "expressive" speech.

But there is a world of difference between such necessary inquiries into the contemporary meaning of the Bill of Rights, in light of technological changes, or changes in common modes of political protest, and the Burger Court’s outright invention of a (practically unlimited) constitutional "right" to abortion, grounded in a previously asserted "right to privacy" that was said in Griswold v. Connecticut to derive from "penumbras" formed by "emanations" from various amendments. (Such a claim recalls the language of medieval Scholasticism more than that of legal interpretation. If the Constitution guarantees me a right to privacy, how come I have to report my annual income to the government?)

To take another illustration of how even "conservative" justices have bought into the vastly expanded mandate of the courts to limit the legislative authority of the people’s elected representatives: In Dickerson v. United States (2000), Chief Justice Rehnquist, speaking for a Court majority, acknowledged that the exclusionary rule lacked any constitutional foundation, but upheld it on the ground that it had become part of our accepted "culture."

Rehnquist’s position brings to mind another of Chemerinsky’s complaints about the originalist position: the fact that originalist decisions sometimes entail overturning previous Court precedents, which normally merit respect on the grounds of stare decisis. But here Chemerinsky neglects an important distinction between legal and constitutional interpretation, articulated by University of Chicago legal scholar Edward Levi in An Introduction to Legal Reasoning (1948): Whereas, for the sake of stability in people’s expectations, stare decisis, except in the case of outrageous precedents, must normally be followed, the same rule does not apply in constitutional interpretation, since the Constitution is our supreme law, and judges always have the authority to reconsider settled precedents in light of its text. (Chemerinsky has no objection to overriding previous constitutional readings when they favor his own political position, as in Brown v. Board of Education.)

Only in Chemerinsky’s penultimate chapter, defending "non-originalism," does his real concern come out. The very term "non-originalism" is a neologism that lacks any clear meaning. But Chemerinsky defends it on three grounds: the desirability of considering "many different sources," including foreign laws as well as domestic "social traditions," in interpreting a constitutional provision; the claim that the Constitution should "be a living document that evolves by interpretation" as well as amendment; and the desirability of making constitutional decisions "with candor and transparency." Under the first heading, he cites, pejoratively, Justice Thomas’s contention that justices "should not invoke stare decisis to uphold precedents that are demonstrably erroneous" interpretations of the Constitution’s text. On the other hand, given Justice Stephen Breyer’s argument "that the United States does not have a monopoly on wisdom about governance," Chemerinsky would encourage reinterpreting the Constitution on the basis of foreign legal practices. In turn, the notion of a living Constitution enables the Court to take account of changes in "society’s needs." (Chemerinsky does not explain why it is the function of courts, rather than elected officials, to adapt the laws to such changes.)

But the greatest benefit of non-originalism, in Chemerinsky’s account, is its "candor" about the "value choices" that all judges make in interpreting the Constitution. For instance, when originalists deny that the First Amendment’s religion clauses were intended to prohibit nondenominational support of religion, since "the historical record is unclear," they are really misrepresenting their "values" as grounded in the text. The real function of judicial opinions, Chemerinsky explains, is to promote "open discussion about values," since "constitutional law is ultimately a discourse about what values should be protected from majoritarian decision-making, why, and how." According to him, "the Constitution is where society states its most important values about how governing is to be done and how individuals are to be protected," a task that should be directly addressed by the courts without encumbrance by judgments that originalists locate in a text composed centuries ago.

"The primary objection to non-originalism," Chemerinsky observes, is its "indeterminacy." But he denies that non-originalism grants judges any more freedom of interpretation than originalism does, since it is in either case up to judges to "choose the level of abstraction" at which constitutional provisions like "equal protection" will be understood, and "determinacy is impossible" because almost any decision will require "balancing" competing interests—for instance, regarding the constitutionality of racial quotas in college admissions.

With that last argument, Chemerinsky gives the game away. As political scientist Christopher Wolfe observed in The Rise of Modern Judicial Review (1994), balancing competing interests is properly a task for the elected branches of government—not for judges aiming to impose their particular "value choices" on the rest of us. Indeed, Chemerinsky’s very use of the Nietzschean term "values" signifies the essentially subjective nature of the choices he wants judges to make for us. Why should a self-governing people submit to rules explicitly based on judges’ personal feelings, rather than on the constitutional text?

In his concluding chapter Chemerinsky warns of the "devastating" consequences an originalist majority will inflict on the American people—at least, those who aren’t conservatives. These include the overturning of abortion rights, "the right of parents to control their children’s upbringing" (actually, a right that has been denied by educational officials backed by the Biden administration, determined to impose curricula embodying transgenderism and "white privilege" ideology on the nation’s schools), abolition of the "wall" between church and state (a Jeffersonian metaphor found nowhere in the Constitution), the freedom of bakers to refuse to make wedding cakes for same-sex couples, and a "prohibition on affirmative action."

Of course, even with the repeal of all such judicially sanctioned rights, Chemerinsky’s parade of horribles will occur only if elected officials representing voters allow it. His real fear is that a majority of voters may not share his views on racial quotas, abortion, same-sex marriage, the exclusionary rule, the latitude currently given to administrative agencies under the Chevron rule, and so on. How can they be allowed to write their opinions, rather than those of enlightened jurists like him, into law?

Complaints like Chemerinsky’s about the consequences of an originalist Court majority have already inspired some academics and politicians to urge President Biden and a Democratic Congress to "pack" the Court with additional justices, so as to restore a non-originalist, liberal majority. In the face of such partisan pressures, anyone who believes in genuine constitutional government can only pray: God save this honorable Court!

Worse than Nothing: The Dangerous Fallacy of Originalism
by Erwin Chemerinsky
Yale University Press, 264 pp., $28

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.