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02/17/2017

Erwin Chemerinsky on Judge Gorsuch and Originalism
Michael Ramsey

In the Los Angeles Times, Dean Erwin Chemerinsky (Irvine) has a rather harsh column on Judge Gorsuch and originalism: Democrats should filibuster Gorsuch’s nomination.  It's a more ham-fisted version of this column by Cass Sunstein (discussed here), but also more obviously not a serious critique of originalism.  Here are the key paragraphs, with my comments:

Neil Gorsuch would be a very conservative Supreme Court justice, almost exactly like Antonin Scalia. Gorsuch, like Scalia, professes a belief in originalism. This is the view that the meaning of a constitutional provision is fixed at the time that it was enacted and can be changed only through the amendment process. Gorsuch has said: “Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Sounds good to me.  Note, though, that he says "almost exactly like Antonin Scalia."  This is important later.

Never in American history, thankfully, have a majority of the justices accepted originalism. If that were to happen, there would be a radical change in constitutional law. No longer would the Bill of Rights apply to state and local governments.

Nope, on two grounds.  First, originalists like Scalia accept incorporation of the Bill of Rights through the due process clause as a matter of stare decisis (see McDonald v. Chicago, Scalia concurring).  Second, many originalists agree with Justice Thomas that most of the Bill of Rights is, as an original matter, properly applied against the states through the privileges or immunities clause (examples of scholars who've done outstanding work on this include Kurt Lash, Chris Green and Bryan Wildenthal).  So an originalist majority on the Court would likely not reach the result Chemerinsky claims, especially with Justices "almost like" Scalia (or Thomas).  I suppose there are some originalists who think most of the Bill of Rights isn't incorporated, but I'm not sure who they are.

No longer would there be protection of rights not mentioned in the text of the Constitution, such as the right to travel, freedom of association, and the right to privacy. This would mean the end of constitutional protection for liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, the right to refuse medical care, the right to engage in private consensual homosexual activity.

Some of this likely would be true, depending on a particular originalist's view of the privileges or immunities clause and of stare decisis.  But some would say, that's the right result, if these rights have been invented by unelected judges.

No longer would women be protected from discrimination under equal protection.

Again, originalists are divided on the right result as an original matter --- many, including Michael Paulsen and Steven Calabresi, disagree with Chemerinsky's claim.  Scalia did seem to say, in non-judicial statements, that equal protection did not extend to women, but he accepted the extension as a matter of stare decisis.  I think it implausible in the extreme that an originalist Court "would" overturn existing precedent on this point.  Chemerinsky provides no evidence that it would.

The original understanding of the Constitution is unknowable ...

Really?  Didn't you just spend the last paragraph identifying literally 14 (count 'em!) results that adopting originalism "would" bring on?  (With more to come below).

... and even if it could be known, should not be binding today.

Note there is no argument here apart from originalism would lead to bad results, which (a) depends on it being knowable, and (b) depends on the idea (as Stephen Sachs points out) that law cannot be law if it leads to bad results.

Under an originalist philosophy, it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as “he” and the framers unquestionably intended that they would be male.

Wow, this old chestnut?  I've been through this before, but this argument is so lame I'd be embarrassed if a student made it.  (a) "he" in eighteenth century terminology could be generic (they had no "he or she" back then).  Eighteenth century statutes commonly said something to the effect that if a person violated some rule "he" would be punished in a specified way -- it's inconceivable that this statutory phrasing was meant to exclude women.  (b) The part of the Constitution actually setting out the requirements to be President (Art. II, Sec. 1, para. 5) does not say "he"; it says "person" (twice), as does the Twelfth Amendment (ten times!).  "Person" obviously includes women.  The framers (sadly) knew how to exclude women if they wanted to  -- most states at the time limited voting to "male inhabitants".  (c)  The framers "unquestionably" intended Presidents to be male?  Maybe, but what matters (in a Scalia version of originalism) is what they wrote, and they wrote "person".  Plus the framers were familiar with great women leaders -- Elizabeth I, Isabella of Spain, Catherine the Great [the latter being on the throne when the Constitution was drafted].  Who's to say that they categorically rejected the idea of a woman leader?  (d) I know of no originalist who thinks this is the right interpretation of presidential eligibility.  It's a fraud dreamed up by nonoriginalists.

Under originalism, Brown v. Board of Education was wrongly decided because the same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools.

Most originalists think Brown was rightly decided (without endorsing the nonoriginalist reasoning of the opinion).  Major scholars who've discussed the issue include Michael McConnell, Michael Paulsen and Steven Calabresi.  Justice Scalia said in an opinion (in dicta) that Brown reached the right result based on the original meaning of the text (Rutan v. Republican Party, Scalia, dissenting).  Like the "no women presidents" argument, the "Brown was wrong" argument is mostly one pushed by nonoriginalists to embarrass originalists, not one accepted by many (any?) originalists.  I concede that the Brown-was- wrong argument is not as painfully frivolous as the no-women-presidents argument: although the text seems clear, it's true that substantial post-ratification practices point the other way.  But originalists think those practices aren't decisive in the face of clear text, so whatever Dean Chemerinsky might think about the "true" meaning (except, remember, he thinks "the original meaning of the Constitution is unknowable") an originalist Court would not think Brown was wrongly decided.

Originalism never was meant to be the method of constitutional interpretation. Long ago, Chief Justice John Marshall reminded us 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.”

That quote, from McCulloch v. Maryland, does not mean what Dean Chemerinsky thinks it means.  McCulloch is actually a very originalist opinion, paying close attention to the meaning of the Constitution's words and the context in which they were written.  Marshall's point was that the original meaning of the Constitution should not be read to place strict limits on the powers of Congress, because Congress would need flexible powers to manage future events (and thus it's implausible, he said, that the Constitution was written to say otherwise).  

Throughout American history, the Supreme Court has regarded the Constitution as a living document, which is the only way a country can be governed in the 21st century under a charter written in the 18th century for an agrarian, slave society.

Well, another way a country "can be governed" is for judges to stick with the original meaning, leaving the democratically elected branches rather than courts the flexibility to "adapt the Constitution ... for ages to come", unless the people (not the judges) adopt new constitutional rights by amendment as described in Article V (as they have done on multiple occasions).  To be sure, that is a debate worth having, but it's not advanced by adopting extreme caricatures of originalism.

(Well, that was fun.  Good thing I don't want a job at UCI).

(Via Ed Whelan at NRO, who makes a separate point: the column calls for Democrats in the Senate to filibuster Judge Gorsuch; but less than a year ago, Dean Chemerinsky claimed that denying a nominee an up-or-down vote in the Senate -- which is what a filibuster does -- is unconstitutional.  (I know, because I debated him on this point).  To be clear, my position is remains the same: the Constitution does not require the Senate to do anything on a nominee (including Judge Gorsuch), so if Senate rules allow a minority to block a vote (or a hearing), the Constitution has nothing to say on the matter.  And if that "impairs the functioning of the Supreme Court" by leaving it with eight Justices (as Dean Chemerinsky said it did), the Constitution does not guarantee a perfectly efficient Court.)