Dean Chemerinsky's Lame Critique of Originalism
At the ACS Blog, Erwin Chemerinsky (UCI Law School) has this critique of originalism: The Misguided Debate over Constitutional Interpretation. Dean Chemerinsky is one of the smartest and most effective writers in the constitutional law field; the argument here is so poor I wonder if someone else wrote it and attached his name to it.
There is an obvious reason why originalism never has – and hopefully never will – be followed by a majority of the Court: it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified). Simple examples illustrate this.
Unfortunately, every one of his examples is misconceived or simply wrong.
1. Chemerinsky argues:
The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.
Preposterous. I would think that pretty much anyone who has (figuratively) set pen to paper in the modern era knows that until quite recently “he” was used generically to include both men and women when the gender was unknown. In our more sensitive times we’ve modified that practice to take into account the potential offense it gives women (rightly so, in my view, although we’ve struggled to come up with a satisfactory alternative). But there isn’t the slightest doubt it was the grammatical custom in the framers’ era. As Wikipedia puts it:
Problems of usage arise in languages such as English, in contexts where a person of unspecified or unknown sex is being referred to, but the most natural available pronouns (he or she) are gender-specific. In such cases a gender-specific pronoun may be used with intended gender-neutral meaning, as he has been used traditionally in English, although she is now sometimes used instead …
If there were any doubt, the Constitution sets out (in Article II, Section 1) the specific qualifications to be President; not only is “male” not one of them, but the relevant section speaks of a “Person” with the given characteristics being eligible.
No Person except a natural born Citizen … shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years …
Moreover, the founding generation knew how to limit things to men when they wanted to: typically voting was extended to “adult male citizens” with certain qualifications.
I’m not aware of any originalist or originalist-oriented scholar who thinks Chemerinsky's view is even plausible, much less that an originalist "would have to say" what Chemerinsky argues.
2. Chemerinsky claims:
The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Education was wrongly decided.
Not so, according to Michael McConnell. The Reconstruction Congress did not pass a statute segregating DC schools; the DC segregation was done at the local administrative level. And, as Professor McConnell further shows, there are good originalist arguments in favor of Brown’s result. Not every originalist accepts them, and of course Dean Chemerinsky isn't obliged to, but it is not obvious that Brown is inconsistent with originalism (and in any event the statute he relies on as his sole support didn't exist).
3. Chemerinsky claims (without elaboration):
Under originalism, the Bill of Rights should not be applied to the states.
Well, maybe the Bill of Rights doesn’t extend to the states under the Fourteenth Amendment’s original meaning, but many prominent scholars and judges think otherwise. Justice Thomas, in his concurrence in McDonald v. Chicago, argued that much of it applied to the states through the privileges or immunities clause; and in earlier days Justice Hugo Black argued for complete incorporation on originalist grounds in Adamson v. California. In the scholarship, my cross-town colleague Bryan Wildenthal at Thomas Jefferson (here and here), Yale's Akhil Amar (in, for example, The Bill of Rights: Creation and Reconstruction), historian Michael Kent Curtis of Wake Forest Law School (No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights), and many others have argued for partial or total incorporation on originalist grounds. To be sure, there are scholars on the other side, but originalism surely does not require a belief that the bill of rights not apply to the states.
4. Chemerinsky argues:
[Originalism] ... assumes that there is an original meaning that exists and just needs to be discovered. Even James Madison and Alexander Hamilton disagreed on so many issues as to make it hard to see their [sic] being an original intent, to say nothing of the views of all who participated in the drafting and ratification of constitutional provisions. Also, there is no indication that the framers wished originalism to be followed and many reason[s] to believe that they did not.
This is misconceived on several levels. First, originalism does not claim to to answer conclusively every constitutional question. Thus the fact that Madison and Hamilton disagreed on some things proves nothing more than that textual interpretation is hard. Madison and Hamilton also agreed on many things that are controversial today -- for example, that the President does not have power to initiate a war. It's hard to imagine that Chemerinsky means to argue (rhetoric aside) that there is no original meaning of any clause. Indeed, in his three prior points he argues that there is an original meaning -- albeit a bad one -- of particular clauses.
Moreover, neither Madison nor Hamilton were infallible; and in the post-ratification era they became political adversaries and thus naturally adopted different readings to support their political programs. Originalism does not claim that everyone in the post-ratification era read the text the same way, correctly, or free of political bias.
Further, Chemerinsky seems not to understand that few modern originalists think their project involves a search for the subjective intent of some or all of the founders. Modern originalism (like, as Jefferson Powell has shown, founding-era interpretation) focuses on the public meaning of the text, not on what an individual or group of individuals might have intended. (See this article by Randy Barnett explaining the shift and the significance of Professor Powell's famous article "The Original Understanding of Original Intent"). What key figures thought the text meant may be useful evidence, but it’s not the end goal. Indeed, modern originalism tends to be somewhat skeptical of post-ratification statements of particular framers, especially when they are self-serving and in conflict with other contemporaneous views.
Finally, Chemerinsky may be right that the framers did not believe in interpretation based on subjective intent (although he does not provide any evidence); but the evidence that they favored interpretation based on the text’s fixed public meaning is substantial (again, this is the message of Professor Powell's classic article, properly understood).
Of course, there are weighty criticisms of originalism. It's disappointing that Dean Chemerinsky did not make them.