The Supreme Court produced momentous decisions in its last
session. The most consequential was the
overturning of Roe v. Wade using logic that could be used to overturn
any right that society has gained since the Civil War. The unpopular rulings, and the potential for
more rights restrictions to follow, unleashed an outcry labeling the
conservative Republican-selected justices as little better than political
operatives. These operatives of course
had a legal theory to fall back on to justify their actions: originalism.
Avowed political operatives have been honing this philosophy for decades
in preparation for the time when a majority of suitably indoctrinated justices
could take control of the Supreme Court and perform their political
duties. David Cole provided an
appropriate drubbing of originalism’s conservative intents in an article in the
New York Review of Books: Originalism’s Charade. His take is prompted by a review of the book “Worse
Than Nothing: The Dangerous Fallacy of Originalism” by Erwin Chemerinsky.
The simplicity and logic of originalism can be compelling
to the conservative reader, but in practice it cannot be implemented without
the entry of the personal biases it claims to eliminate. In its most concise form, the theory claims
that the Constitution should be interpreted in terms of its “original meaning,”
that intended by the Constitution’s authors.
“This theory rejects the idea
that constitutional norms can evolve through judicial decision-making; the only
legitimate way to update constitutional law, its proponents insist, is to amend
the Constitution, a process requiring supermajorities in Congress and the
states that are virtually impossible to achieve.”
“In Worse Than Nothing,
Erwin Chemerinsky, the dean of the University of California, Berkeley, School
of Law and one of the nation’s leading constitutional scholars, offers a
concise, point-by-point refutation of the theory. He argues that it cannot
deliver what it promises—and if it could, no one would want what it is selling.
Many eminent scholars and jurists have previously exposed originalism’s flaws,
including Ronald Dworkin, Stephen Breyer, John Hart Ely, and Bruce Ackerman,
but few have done so as clearly, succinctly, and persuasively as Chemerinsky.”
The fundamental weakness of the concept is that “original
intent” cannot be determined. If the
framers of the Constitution had wished their legacy to be a document to be
followed explicitly until the end of time, they would have included detailed
explanations of what they had in mind.
They did not, leaving short phrases with vague terms to be argued
over. Compromise was the order of the
day. More precise declarations might
have rendered the eventual agreement on wording unattainable. Yet, modern-day originalists claim they can
provide a clear interpretation.
“Originalists must first decide
which historical evidence counts, and as every historian knows, that requires a
great deal of judgment. Early versions of originalism referred to the “original
intent” of the framers, but little evidence of their intent exists. The records
of the Constitutional Convention are sparse; we are left largely to rely on
James Madison’s notes, but their objectivity has been questioned.”
“Furthermore, even if we could
know precisely what went on behind the closed doors of the Constitutional
Convention, the framers did not have authority to bind the nation themselves.
The Constitution took effect only upon the votes of the state ratifying conventions,
so if any intentions are relevant, it would be theirs. But there is even less
evidence available regarding the ratifying conventions. And even if we had
verbatim transcripts of each state’s ratifying convention, how does one
determine the intent of a collective body—or in this case, of multiple
collective bodies? Original intent is a theoretical construct, not a fact in
the world.”
After years of criticism, the originalists had to give up
on the origins of originalism and construct a new version of their theory
“So the revised version of
originalism directs judges instead to the ‘original meaning’ of the
Constitution, that is, what its words meant to the public when they were
adopted. Original meaning is guided by dictionaries of the time, as well as
contemporaneous usage and practice. But dictionaries often provide multiple
definitions for a given term, legal meanings can differ from ordinary meanings,
and contemporaneous practices often varied greatly, even assuming that the
Constitution was meant to codify some of them.”
“Thus, Chemerinsky argues, ‘for
most constitutional provisions, there is no “original meaning” to be
discovered. Instead, there is a range of possibilities that allows for exactly
the judicial discretion that originalism seeks to eliminate’.”
Perhaps the most serious objections to originalism, and
certainly the most frightening, arise from considerations of issues that were
not directly considered at the time constitutional language was written.
“The Constitution gives Congress
the power to create an army and a navy. But can Congress create an air force?
Only if one reads the references to ‘army’ and ‘navy’ more broadly, as
authorizing standing military forces.”
The Fourteenth Amendment was motivated by the need to
provide “equal protection” for freed slaves.
What exactly does “equal protection” mean? What does it mean to an originalist?
“When the Court in Dobbs v. Jackson
Women’s Health Organization declared Roe ‘egregiously
wrong,’ its reasoning rested squarely on originalism. The Court in Roe had
held that outlawing abortion infringed the Fourteenth Amendment’s prohibition
on ‘depriv[ing] any person of…liberty…without due process of law.’ That
couldn’t be right, five justices in Dobbs concluded, because
abortion was a crime in most states when the Fourteenth Amendment was adopted
in 1868, and there was no evidence that those who drafted or ratified it
understood it to invalidate those laws. Since the amendment did not have that
meaning then, it cannot have that meaning now.”
This interpretation provides the potential to return our
society 150 years back in time.
“More significantly, does the
equal protection clause of the Fourteenth Amendment prohibit racial
segregation? If one reads the term ‘equal protection’ in light of
contemporaneous practices in 1868, one would conclude that segregation was
permissible—as seven of eight Supreme Court justices did in Plessy v.
Ferguson (1896). To hold that segregation is prohibited, one must read
the guarantee of equal protection at a higher level of generality and apply its
principle of equality in a way that the ratifying generation would not have.”
“The same is true for whether
the clause prohibits sex discrimination. In 1868, women lacked the vote and
were excluded from many professions, including the practice of law. And the
immediate aim of the amendment was to protect newly freed slaves, not women. It
wasn’t until the 1970s, in the midst of the women’s rights movement, that the
Supreme Court interpreted it to presumptively prohibit sex discrimination.”
The present court is scheduled to decide on affirmative
action soon. It has signaled it is
prepared to rule against any race-based consideration with respect to
affirmative action even though race-based actions to assist former slaves were
deemed acceptable after passage of the Fourteenth Amendment.
“Challengers have argued that
the equal protection clause requires ‘color-blindness’ and therefore
categorically prohibits any consideration of race in admissions. Defenders of
affirmative action—which the Court has repeatedly endorsed, at least in
circumscribed form, for about fifty years—argue that the Freedmen’s Bureaus
created in the aftermath of the Civil War demonstrate that race-conscious
action was not deemed a violation of equal protection where it was adopted to
aid newly freed slaves or, depending on one’s level of generality, African
Americans or disadvantaged groups…Yet it is likely that the Court’s
conservative (and originalist) justices will declare affirmative action
unconstitutional by reading the equal protection clause at an even higher level
of generality as a ban on all consideration of race, discounting evidence of
its more specific meaning when adopted.”
The most obvious characteristic of originalism as a means
of constitutional interpretation is that it need be applied only when
convenient in attaining political goals.
“Last term, for example, five
justices invoked originalism to overturn Roe v. Wade. But the
same five voted in Carson v. Makin to require Maine to
fund its citizens’ attendance at private religious schools if it funded their
attendance at private secular schools. Chemerinsky writes:
For two centuries, the First Amendment
to the Constitution was understood to prohibit direct support of any
religion. Conservative Republican
justices have been planning on overturning the Constitution in this area for
years.”
“With the original meaning
against them, the originalist justices in Carson simply ignored the
original understanding and instead justified their result by the
non-originalist method of extrapolating from two recent decisions that
similarly defied the establishment clause’s original meaning.”
How far might this court go in restricting established
rights and freedoms? Consider Clarence
Thomas.
“In Dobbs, Thomas
wrote separately to argue that the Court should reconsider—on the same
originalist grounds it invoked to eliminate the right to abortion—the rights to
use contraception, to engage in sexual intimacy with a consenting adult
partner, and to marry someone of the same sex. The four justices who joined
Thomas in the majority insisted that their decision did not place these other
rights in peril, but without explaining how, from an originalist vantage point,
they are any different.”
“Thomas has also advocated
abandoning fundamental First Amendment protections for the press and any
constitutional rights at all for children, because these rights were not
recognized in 1791 or 1868. And he maintains that the establishment clause
should apply only to the federal government, leaving states free to fund or
even endorse specific religious denominations. The fact that he stands alone on
almost all these positions only underscores the illegitimacy of originalism. If
a theory cannot be applied consistently without consequences that are untenable
even to most of its proponents, it’s an untenable theory. And if those
consequences lead its practitioners to abandon the theory on a regular basis,
it hardly constrains judicial discretion in a meaningful way.”
As the Republicans become crazier, Supreme Court
decisions will become crazier.
