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.
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