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.


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.”