Do we really want our rights to be determined by the understandings of centuries ago?
The Philosophy That Makes Amy Coney Barrett So Dangerous, NYT, Erwin Chemerinsky, October 2020, Opinion Piece
If I did not know this man personally, I would have never looked to him for help and also advice from time to time. It was only through a friend I wrote with at the old Slate site, I had the chance to meet him.
Professor Chemerinsky discusses the dangers of applying an originalism interpretation of the US Constitution. There is not much I can add to this and I would call this article a copy and paste at Angry Bear. It is a good read for nonlegal based readers.
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In 1987, Robert Bork was denied confirmation to the Supreme Court because his originalist beliefs were deemed a serious threat to constitutional rights. Originalism is no less dangerous for those rights today, yet Judge Amy Coney Barrett’s repeated statements professing her belief in originalism have been met with little objection.
Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868.
But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that Brown v. Board of Education was wrongly decided in declaring laws requiring segregation of schools unconstitutional.
In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.
Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.
Judge Barrett doesn’t need to explicitly say that she would vote to overrule Roe v. Wade because she has left no doubt by saying that she is an originalist in the mold of Justice Antonin Scalia, for whom she clerked.
“His judicial philosophy is mine too,”
she told the Senate Judiciary Committee.
Justice Scalia, who died in 2016, repeatedly and unequivocally urged that Roe be overruled, arguing that the Constitution says nothing about abortion and states should be allowed to decide the question for themselves. Judge Barrett’s scholarly writings suggest she would have no hesitation in overruling Roe, either, nor those “liberty” decisions. She wrote, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
The rejection of originalism is not new. Early in the 19th century, Chief Justice John Marshall wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.”
It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.
Moreover, it is a myth to think that even identifying an originalist understanding can solve most modern constitutional issues. Can original public meaning really provide useful insights about the meaning of the Fourth Amendment and whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes or obtain stored cellular phone location information without a warrant?
Also, what often is overlooked is that conservative justices ignore original meaning when it does not serve their purpose. One of the worst decisions in recent years was Shelby County v. Holder in 2013, which struck down key provisions of the Voting Rights Act that required states with a history of race discrimination in voting to obtain approval from the attorney general or a panel of judges before making significant changes in their election systems.
The court, voting 5-4, said that this violated the principle that Congress must treat all states alike. But no such requirement is found in the Constitution. Moreover, the Congress that ratified the 14th Amendment imposed Reconstruction on Southern states, showing that it did not mean to treat all states alike.
In fact, Congress after the Civil War adopted many race-conscious programs that today would be regarded as affirmative action. Yet Justice Scalia and his originalist colleague Clarence Thomas ignored this original understanding in repeatedly declaring that all forms of affirmative action are unconstitutional.
If Hillary Clinton had won the presidency in 2016 and replaced Justices Scalia, Anthony Kennedy and Ruth Bader Ginsburg, originalism would have faded in importance. Justice Thomas would have been the only originalist on the court and the theory would have been kept alive only by some conservative law professors.
But now, with the confirmation of Judge Barrett, it will be a dominant theory on the Supreme Court. Make no mistake, it is just as much a threat to all of our rights as when Robert Bork espoused it more than 30 years ago.
Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, is the author, with Howard Gillman, of “The Religion Clauses: The Case for Separating Church and State.”
Originalism has always been a scam. And it is absurdly inconsistent with our common law heritage.
@Terry,
Yes. As far as I can tell, “originalism” as practiced by Scalia and his acolytes consists of starting with your conclusion, then reasoning backwards to cherry-pick the arguments to support that pre-ordained conclusion.
Joel is right. As Run knows, this topic was debated constantly on the old Slate. At the end of the day, if the founders themselves could not agree on how to implement the system they created, how in the world can we argue that their was a consensus among them which should guide us? Almost upon ratification the parties split into two factions both of which fought bitterly against the other until death. So which faction do you prefer? An originallst will find one sooner or later, all they have to do is dig hard enough.
Scalia and Company either have lied through their teeth or are grossly incompetent as lawyers and judges. When they claimed the Affordable Care Act is not authorized by the Commerce Clause, they completely ignored the actual language — Congress has the power to regulate, by “all laws which shall be necessary and proper,” “commerce among the several states.” Period, end of story, especially if you claim to be an “originalist.”
One-sixth of the national economy, conducted in countless exchanges of services and things both within and across state lines, qualifies as “commerce among the several states.” There was extensive expert explanation why, if a role for private insurance was to be maintained, the various elements of the Affordable Care Act worked together to address the many severe problems in the country’s health insurance system that existed, including a loosely-enforceable requirement for everyone to have the wherewithal via health insurance to pay for unpredictable medical expenses.
To contend that the requirement violates the Constitution by making up requirements of Congress out of whole cloth, not even hinted at in the actual language, is ludicrous. I would love to see how originalists would try to square that with their theory. Indeed it is a bad faith argument, bad lawyering, bad judging. It’s time for everyone who actually cares about the Constitution to start saying so. “Originalism” is not a theory, as they apply it anyway, that deserves respect.
Urban:
I am not going to disagree with you. I believe Erwin says the same as what you do also. I would not argue with Erwin. It is one of the few times we incurred respect from (a) federal judge(s).
Originalists are like fundamentalists. They like to pick and choose.
Now ask the same question about religion.
Our new justice, elected straight from the original rules.
Great article and comments, except that I have lost my Reason.
“Now ask… (which) same question about religion?” Sure there was a time that religion was exercised as the divine rights of kings, but that was before men wrote constitutions. The Magna Carta was our first big move on our own that I recall, but it took a lot longer to separate church and state. Yet it was done. Relics only have the power that we let them have.
Religion still has a social role of charity and cohesion and even a moral context. Ritual and social gatherings such as weddings, funerals, and communion in general strengthen civic bonds more than they subvert them. I am with William James on this. Bertrand Russell had a personal problem with religion. The two were best of friends, bur argued about this with each other for their entire lives.
As Dean of the law school, I makes me wonder even more why the hell John Yoo is lecturing there.
Daniel:
Because he is an alternative opinion.
Speaking of Constitutional “originalism,” there’s nothing in the Constitution that explicitly confers on the SCOTUS the authority to rule on the constitutionality of statutes duly passed by a legislature and signed into law by the executive. Nothing prevents a state from asserting originalism and ignoring the SCOTUS when it attempts to intervene in such circumstances. Marbury v Madison is not a Constitutional Amendment. It has so far been respected, but as the SCOTUS has now become an extension of the GOP, Roberts would be well served to keep in mind how fragile this authority is
Run,
I know that is the official and fair and balanced answer but considering:
“But now, with the confirmation of Judge Barrett, it will be a dominant theory on the Supreme Court. Make no mistake, it is just as much a threat to all of our rights as when Robert Bork espoused it more than 30 years ago.”
And Yoo is teaching this as legitimate legal scholarship.
Yoo is not just spouting an alternative opinion. His work during the Bush years was not just an alternative opinion. He justified torture.
We are in this mess because we are not willing to call BS on what is BS.
Oh well.
Daniel:
Here is a give and take on the issue of Yoo. https://balkin.blogspot.com/2009/08/dean-edley-on-professor-yoo.html If you believe this is bad, Yoo has basically said SCOTUS has made it easy for a sitting president to make decisions through executive order bypassing Congress which can only be removed through a slow administrative process and/or by a successor. DACA was just such a decision and Yoo interpreted this for trump. trump needs to be relegated to the trash heap.
If trump is re-elected, you can expect many more executive orders unless blocked by Congress. https://www.dailycal.org/2020/07/26/uc-berkeley-law-professor-advises-white-house-on-how-to-pass-policies-without-congress/
“Erwin Chemerinsky, dean of Berkeley Law, said in an email that he has received many messages from alumni and students who were upset at Yoo’s position, but Yoo’s actions were legal.
“Professor Yoo is a tenured professor and his speech, including his advice to the Trump administration is protected by the First Amendment and academic freedom,” Chemerinsky said in the email. “I disagree with his position on this, but he has the right to express it.”
Chemerinsky added that the law school will not take any action against Yoo.”
Is the issue with the person who performs the evil or the one who says and/or justifies the evil.
The power of the SCOTUS to nullify legislation as unconstitutional appears nowhere in the Constitution. A true originalist would therefore find that states can properly ignore the SCOTUS on the validity of laws passed by the legislature and signed by the executive.
Right now, this power derives from Marbury v Madison. Roberts must realize the threat to the court’s power posed by this form of “originalism.”
Joel:
Not sure why. Twas not I. We are updating the system with improvements to it to allow commenters to have greater capability. It should not happen; but it does during changes. It has been happening where the system’s protective software tosses comments. I have been restoring them as they are pointed out to me. Thank you for letting me know. There were a couple of others also.
The Marbury v Madison SCOTUS decision amounted to SIDS for democracy. SCOTUS was able to greatly expand its own powers without the necessity of any outside approval. Partisan politics could proceed largely without any accounting to elective representation. Elected officials need not fear the electorate for decisions made by the courts.
Any partisan would like some the subsequent rulings while hating others, but the loss of democratic process inherent with such supreme power in insular appointed hands has brought us to the politically polarized social state which we are now plagued with. Over two centuries of screwing the pooch will be very painful and difficult to unscrew.