02/24/2017

Has Originalism Been Tried?
Mike Rappaport

Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego.  It was another very enjoyable and productive event.  University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post:

I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was one of a small but non-trivial number of critics of originalism there, and the fact that we were included also speaks well for the conference, of course.  I learned things worth learning and would be delighted to go again.

Richard continues the blog post by discussing the views of some originalists that real originalism has never been tried.  He then expresses some skepticism about advocating a hypothetical approach of this type.

I have to admit that I don’t hear a lot originalists arguing that the approach has never been tried.  I’m not sure what these people have in mind.  I suppose they could have in mind new research techniques, such as corpus linguistics, that would allow much better understandings of the original meaning of language at the time of the framing.  But this technique is mainly about allowing modern interpreters to understand the original meaning and does not suggest that people at the time of the Constitution did not practice originalism.

In my view, the original methods approach – which requires interpreters to employ the interpretive rules that were deemed applicable to the Constitution at the time of its enactment – is the proper originalist interpretive approach.  Given that this approach requires that we employ the interpretive rules that existed at the time of the Constitution, it might seem problematic to claim that originalism had never been tried.

But things are a bit more complicated than this.  At the time of the Constitution, there were differing interpretive views – most importantly, the approaches of Thomas Jefferson and John Marshall.  They each sought to justify their approaches based on original methods –  that is, based on the applicable interpretive rules at the time.  So the leading approaches followed original methods, but they differed on its content.

What should originalists do today?  In my view, we should follow the correct original methods approach.  That is, we should determine what the proper approach was at the time and follow it.  In my view, the proper approach was closer to Marshall’s approach, but was not exactly Marshall’s.

So, I am advocating both something that was tried (the original methods) and something that was not tried (employing only a quasi-Marshallian approach).  But I see nothing unrealistic or problematic about advocating this.

But I should add that there no reason to expect or require that originalism work perfectly in accord with what I expect or desire.  Even in an originalist world, where everyone accepted originalism, it would be unlikely that all originalists would agree.  In fact, one might expect different originalist parties.  One possibility is a split between liberal originalism and conservative originalism, but there are other possibilities.  Would that be real originalism, even though I would presumably disagree with some of it?  Sure.  That may be the only kind of originalism we could realistically expect, but despite the disagreement it would still be much better, in my view, than what we have now.

Richard Primus on Originalism (with a Response from John McGinnis)
Michael Ramsey

At Balkinization, Richard Primus (Michigan): Originalism as Old and New (commenting on the San Diego originalism works-in-progress, at which he was an invited commentator).  From the beginning:

One of the things I learned [at the conference] -- I think -- was something about the growth of a relatively new perspective on originalism among many leading originalists.  Over the course of my time as a law professor, I've periodically heard originalists say that originalism is a new interpretive theory, one that has never really been put into practice.  One upshot of this view is the further idea that little or nothing in judicial practice to this point in time should be adduced as evidence of serious problems with originalism as a judicial method, because nothing that's been done so far is originalism.  If judges trafficking in individual meanings have been sloppy with their history, or if looking to original meanings doesn't have a demonstrated capacity to reduce the scope of disagreement among judges (because judges interpreting original meanings seem to come down on opposite sides of a contested question pretty much in the same proportions as we'd guess they'd come down on opposite sides if they used some other method), it doesn't follow that originalists shouldn't claim that courts can in fact learn to do history properly of that originalism has the virtue of making the law more determinate than other decisionmaking methods do.  What seems like counterevidence isn't, because real originalism has never yet been tried.  And in the meantime, we should recognize that originalist theory is in its infancy and cut it some breaks accordingly.  If we let it mature, and then road-test it, it might turn out to be great.

What I noticed about this view at this weekend's conference was that it seems to be held by more leading originalists than I think was the case ten or even five years ago.  I heard this view articulated, or at least alluded to, by originalist scholars of various different stripes: young and old, diverse in terms of the particular form of originalism they favor, and so forth.  To be sure, the view isn't universally held among today's leading originalists: I'm sure any number of the originalists at the conference would disavow it.  Indeed, there are some extant theories of originalism that rely on the contrary claim that we've in fact been doing originalism all along.  (Think of methodical-postivism originalists like Will Baude and Stephen Sachs.)  But if the thirty or so originalists at this weekend's conference are a representative sample, the community of leading originalist theorists has shifted at least some appreciable distance toward the view that originalism has never yet been tried.

John McGinnis responds at Liberty Law Blog: Once and Future Originalism.  He begins:

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School [ed.: that's the University of San Diego School of Law, please] under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

Of course, originalist scholars have refined the theory over time in what William Baude has called the division of labor between the bench and the academy. But these efforts do not change the map, but fill in important details. The world of scholarship on originalism as on other subjects is inevitably fractal: even progress on one question leads naturally to other questions. There is nevertheless an essential continuity between the  interpretive method Madison endorsed and that in which many originalist conference participants were earnestly engaged.

My view is in between.  I agree with Professor McGinnis that originalism was the main interpretive approach in the early years (not by that name, of course).  But I think things began to go astray earlier than the Progressive Era -- the late nineteenth century Supreme Court began appealing to extraconstitutional considerations and issued decisions seemingly based on little more than the Justices' own intuitions, with disturbing frequency.  For example, consider the range of federal power cases resting not on the federal government's delegated powers but on supposed inherent rights of sovereignty (the Chinese Exclusion case is a prominent one).  Relatedly, the Insular Cases created an exception to the geographical reach of the Constitution based apparently just on convenience.  And, after a good start in Strauder v. West Virginia and Yick Wo v. Hopkins, the Court drifted away from the original meaning of the Fourteenth Amendment and ultimately into Plessy v. Ferguson.  (Michael Paulsen and Luke Paulsen have an appropriately harsh assessment of this period in their book The Constitution: An Introduction).

I also think Professor Primus is partly right on two grounds.  Originalism has not been done consistently at the Court for a long time, although some cases are based on originalism (increasingly so, after Justices Scalia and Thomas joined the Court).  So, regardless of early practice, it's true that there is not a consistent experience with originalism in the modern era.  Further, originalism has only recently gained the deep and careful attention of a range of scholars, so its theoretical underpinnings in the modern era are relatively new and still being developed.  I'm not sure if this adds up to the full claim he is making, but I see where he gets the idea.

Professor McGinnis concludes (and I agree [including with the view he attributes to me]):

But originalists today are not advocating a radically new and lawless philosophy.   Originalism was the law once and today has enough influence on decisions that it is, in the words of Michael Ramsey [at the conference], one of the contenders for a rule of recognition deeper than the proposition that law is whatever the Supreme Court says it.  It can become an even more plausible as a contender, if originalists accept, as Michael Rappaport and I think they should, a role for precedent under rules that mediate between the generative force of originalism and the need to recognize than any legal system makes mistakes. Then nonoriginalist decisions that are woven in the consensus fabric of American life need not be disturbed.

It should not surprise us that in a nation as heterogeneous and divided as ours has become, that no underlying interpretive methodology is likely to gain a permanent victory. But the Gorsuch nomination as well as the growing culture of originalism suggests that the Constitution’s original interpretive method is regaining dominance.

02/23/2017

Caroline Mala Corbin: Justice Scalia, the Establishment Clause, and Christian Privilege
Michael Ramsey

Caroline Mala Corbin (University of Miami School of Law) has posted Justice Scalia, the Establishment Clause, and Christian Privilege (First Amendment Law Review, Vol. 15, 2017) on SSRN. Here is the abstract:

Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion.

This symposium Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.

Via Larry Solum at Legal Theory Blog, who has additional comments and excerpts, including this in response to the claim that originalism is indeterminate:

Of course, many contemporary originalists affirm that the original public meaning of the constitutional text underdetermines some constitutional questions.  Where the text is vague or opened textured or where ambiguities cannot be resolved by contextual disambiguation, there may be "construction zones"--where the development of constitutional doctrine is not fully determined by original meaning.  Nonetheless, a very good case can be made that the determinate provisions (including much of the hard-wired or structural constitution) and the core of settled meaning of provisions that are vague have real "bite." See William Baude & Stephen E. Sachs, Originalism's Bite.

02/22/2017

Mark Tushnet on President Trump and the 25th Amendment
Michael Ramsey

At Balkinization, Mark Tushnet: The 25th Amendment Option: Law and Politics.  On interpreting the 25th Amendment:

 [The 25th Amendment provides that when] the Vice President and a majority of the Cabinet declare that the President is "unable to discharge the powers and duties of his office," and send that declaration to Congress, the Vice President immediately becomes Acting President. The (now not quite) original President then can send his own declaration to Congress, "Yes, indeed, I'm able to discharge the powers and duties," and he becomes President (again) -- unless the Vice President and a majority of the Cabinet send another declaration, "No he isn't." within four days. At that point Congress has two days (if in session) to determine by a two-thirds vote in both Houses that yes indeed he is unfit. If the vote goes against the President, the Vice President becomes Acting President (apparently until the end of the original President's term -- so Pence would have the title Acting President, not President).

The legal part of all this is, What does "unable to discharge the powers and duties" mean? The clear intention of the Amendment's drafters was to deal with situations of physical and mental disability (Garfield for the eleven weeks between his being shot and his death, Wilson after his stroke). But that's "expected applications" originalism. The text is compatible with an interpretation in which "unable" means "unfit by demonstrations of sustained and serious failures of temperament" (or something along those lines). Another way to put it is that "unable" should be interpreted in a way just short of Gerald Ford's "high crimes are whatever a majority of the House think they are" standard: If there's a reasonable case to be made that the President is unable to discharge, etc., according to some reasonable understanding of "unable," the 25th Amendment is satisfied.

This is emphatically not how textualist originalism works.  True, "unable" can have the figurative meaning "unfit" or "not able to perform effectively" in some contexts (he's "unable" to play quarterback because he throws a lot of interceptions).  But it also (and I would say more commonly) means literally "not able" -- that is, not capable of doing the thing in question because of an absolute impediment (he's "unable" to play quarterback due to a broken leg).

The question is, which meaning would a reasonable person at the time of enactment more likely give to the word as it is used in the 25th Amendment, taking into account its history and context?  The question is not whether one meaning "is compatible" with the text; the question is which meaning is more likely.

To answer this, we can consider (as the post indicates) the background that gave rise to the amendment, namely the situation of presidents who were literally "unable" to function as president (not just doing so poorly).  We can also consider the impact of the amendment if it did mean "unfit" (which would be a substantial constitutional innovation, in effect extending impeachment from "high Crimes and Misdemeanors" to general lack of competence) versus the impact if it meant only literally unable (a minor adjustment in the case of unusual circumstances).  And we can consider whether people at the time of enactment talked about it only in the latter terms, or if they also saw it as a check against unfit presidents.

Professor Tushnet derides this approach as "original expected applications" though I might think it better described as "purpose."  I agree that for an original public meaning originalist the touchstone is the text, not the purpose or the expected application.  But purpose and expected application, although they cannot override text, are important to deciding on the meaning of text.  Where a word is ambiguous (that is, it has two possible meanings, as here) they are indications of what meaning was understood.

My guess is that looking at the history would show the "unfit" meaning is not even "compatible" with the original meaning of the amendment -- given the significance of the change, if no one at the time is recorded as advancing the "unfit" meaning, that's pretty strong evidence that it was not the original public meaning.  But again, the question is not whether the "unfit" meaning is "compatible" but whether it is more likely than not to have been the original meaning.  Once the question is posed this way, I can't imagine the answer is at all in doubt.

02/21/2017

The Language of the Lame Duck Pardon Amendment
Mike Rappaport

A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons.  While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism.

But having an idea about what an amendment should do and writing the language of that amendment are two different things.  Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment.  Steve has both more taste and more talent for this task than I do.

Consider the language he came up with:

The power to grant reprieves and pardons for offenses against the United States may not be exercised unless the President shall have made a public proclamation of the same; nor, except to stay the execution of a sentence of death, from one month prior to the day for choosing the electors until noon on the 20th day of January next following, unless after the counting of the electors’ votes the President shall have been chosen to continue in office.

The language following the semicolon basically says that the President cannot pardon anyone for a month before Election Day until Inauguration Day unless he is reelected.  The first sentence prohibits secret pardons, which might be used to circumvent the restriction on lame duck pardons.  Without that prohibition, the President might issue secret pardons before the period beginning one month prior to election day.

Of course, some might believe that a prohibition on secret pardons was problematic, since perhaps they could be used for legitimate purposes.  I am not convinced, but if one disagrees, one could address the issue in another way – say by changing the amendment to allow the next President to repeal any secret pardons issued by the prior President.

I like this language.  This could be the 28th Amendment.  All we need is two thirds of both houses and three quarters of the states.

David Post on the Emoluments Clause and President Trump's Chinese Trademark
Michael Ramsey

At Volokh Conspiracy, David Post: Trump Conflicts Watch, 2: Where trademark law meets the foreign emoluments clause. From the introduction:

The Associated Press (along with Japan Times and the Voice of America’s China Service) reports that President Trump, “after suffering rejection after rejection in China’s courts,” has finally gotten something “that he has been trying to get from China for a decade: trademark rights to his own name.”

Is that an emolument? 

This Chinese trademark matter raises a different issue regarding the meaning of “emolument.” The Chinese government hasn’t engaged in a like-for-like market exchange with Trump; rather, it has conferred a legal benefit that has some, non-trivial value, on him. Is receiving trademark rights a constitutionally-prohibited “emolument … of any kind whatever … from a foreign State”?

I think it is. I’m even willing to give Trump the benefit of the doubt here, and to assume that everything that has taken place here is on the up-and-up and strictly by the book, i.e., that there’s been no quid pro quo, that this is simply a case where Trump received a benefit to which he (or anyone similarly situated) would be lawfully entitled under the relevant provisions of Chinese trademark law, and that it is simply a coincidence that, after a number of rejections, the application was approved after Trump was elected president of the United States.

...

 One clue to what [the emoluments clause] means comes from asking: What were the Founders concerned about? What’s the purpose of this clause (and its sister “domestic emoluments clause” in Art. I Sec. 7)? What’s the harm — a harm serious enough to include in the new Constitution? Why shouldn’t Jefferson be allowed to take a nice snuff box from the French king?

The answer, as Hamilton put it, is that the receipt of the gift would “weaken his fortitude [and] corrupt his integrity by appealing to his avarice,” giving him a “pecuniary inducement to renounce or desert the independence intended for him by the Constitution.” Men are avaricious; give them a nice snuff box and they’ll be more likely to treat you with special favor down the road, perhaps out of a desire not to show ingratitude, perhaps out of a desire to obtain additional valuable gifts, perhaps both. In either case, dealing with the foreign sovereign will be compromised, no longer having the interests of the people of the United States as the sole motivating factor in all decisions and actions. ...

(For a seemingly different view, see Rob Natelson here).

02/20/2017

Opinio Juris Symposium on "The Death of Treaty Supremacy" by David Sloss
Michael Ramsey

At Opinio Juris, the editors have put together an online symposium on the outstanding book The Death of Treaty Supremacy by David Sloss (Santa Clara).  Here are the contributions:

The Treaty Supremacy Rule: Is a Partial Revival Possible?, by David Sloss

Dubinsky on The Death of Treaty Supremacy, by Paul Dubinsky (Wayne  State)

Treaty Supremacy, International Legal Process, and the Origins of the International Human Rights System, by Peggy McGuinness (St. Johns)

The Modern Doctrine(s) of Non-Self-Executing Treaties, by John F. Coyle (UNC)

The Origins and Fall of Treaty Supremacy and Its Significance, by Thomas Lee (Fordham)

Treaties in Constitutional Time, by John Parry (Lewis & Clark) 

The Status of Treaties in Domestic Law, by David Stewart (Georgetown)

Bringing Human Rights Home: Reflections on the Treaty Supremacy Rule, by Carmen Gonzalez (Seattle)

The Death of Treaty Supremacy: An Invisible Constitutional Change–Introduction to Opinio Juris Book Symposium, by David Sloss

Although the book is a broad historical account, it has strong originalist implications.  From the latter post, here is the author's summary:

The book’s central claim is that an invisible constitutional revolution occurred in the United States in the early 1950s. From the Founding until World War II, the treaty supremacy rule, codified in Article VI of the Constitution, was a mandatory rule that applied to all treaties. As originally understood, the rule consisted of two elements. First, all valid, ratified treaties are supreme over state law. Second, judges have a constitutional duty to apply treaties when a treaty conflicts with state law.

...

The treaty supremacy rule was a bedrock principle of U.S. constitutional law from the Founding until World War II. However, the advent of modern international human rights law sparked a process of invisible constitutional change. ...

Thus, modern doctrine holds that the treaty makers may opt out of the rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing” (NSE). In sum, the de facto Bricker Amendment converted the treaty supremacy rule from a mandatory to an optional rule by creating an exception for NSE treaties.

Although I have some quibbles with Professor Sloss' description of the original rule, I think his account of both the founding and the re-invention of non-self-execution is basically correct.  (My thoughts on the original meaning of treaty supremacy and self-execution are here.)  I have no doubt that the current doctrine of non-self-execution is, at minimum, substantially confused and, in some applications, substantially different from the original meaning.

The question is what to do with that conclusion.  For an originalist, it may seem obvious -- the modern doctrine is too confused to be entrenched, so we should attempt to recover the original meaning (that's my idea, in this paper).  This also seems to be Professor Sloss' implication throughout the book.  But for nonoriginalists, it's not clear there is a problem.  Treaty law evolved in response to the evolving role of treaties.  That's what nonoriginalists say should happen.  People who are not usually originalists should think carefully before becoming unduly upset by this, simply because they happen to think non-self-execution is a bad idea.

For myself, I think a strict self-execution doctrine is problematic in the modern world, given the extent to which modern treaties are aspirational, multilateral, wide-ranging and deeply intrusive on purely domestic legal rules.  The non-self-execution rule that evolved in the mid-twentieth century mitigates that problem, and Congress' power to implement treaties (see here) prevents divergence between treaty law and domestic law from becoming too troubling.  I would say it works pretty well to have the U.S. treatymakers decide whether a treaty should be self-executing or non-self-executing.  That, however, is not the original meaning of the supremacy clause.

02/19/2017

Robert Natelson: The Original Meaning of the Constitution's Postal Clause
Michael Ramsey

Robert G. Natelson (The Independence Institute) has posted Founding-Era Socialism: The Original Meaning of the Constitution's Postal Clause on SSRN.  Here is the abstract:

The Constitution’s Postal Clause granted Congress power to “establish Post Offices and post Roads.” This Article examines founding-era legal and historical materials to determine the original meaning and scope of the Postal Clause. It concludes that the Clause authorized Congress to pass all legislation necessary to create, operate, and regulate a unified transportation, freight, and courier system, although it also limited congressional authority in some respects. The founding-era reasons for the postal system were revenue, promotion of commerce, and political control. The Article also corrects some incorrect claims about the Clause previously advanced by legal scholars.

Professor Natelson adds:  

Because the Postal Clause authorizes Congress to "establish . . . post Roads" I had to address Prof. Baude's 2013 thesis that eminent domain was a "great power" and therefore not implied in the Constitution's grants of power. I find the thesis lacking support in founding era law.

02/18/2017

Jennifer Mascott: Who are "Officers of the United States"?
Michael Ramsey

Jennifer L. Mascott (Georgetown University Law Center) has posted Who are "Officers of the United States"? on SSRN.  Here is the abstract: 

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proven difficult to apply to major categories of officials, leading to a circuit split this past December over whether certain administrative law judges need Article II appointments. This article challenges whether “significant authority” is even the proper standard, using two distinctive tools: (i) “corpus linguistics”-style analysis of Founding Era documents and (ii) examination of appointments practices in the Continental Congress and the First Federal Congress. Both strongly suggest the original public meaning of “officer” is much broader than modern doctrine assumes—encompassing any government official with responsibility for an ongoing governmental duty. 

This historical meaning of “officer” likely would extend to thousands of officials not currently appointed as Article II “officers,” such as tax collectors, disaster relief officials, federal inspectors, customs officials, and administrative judges. This conclusion might at first seem destructive to the civil service structure. But this article suggests that core components of the current federal hiring system might fairly readily be brought into compliance with Article II by amending who exercises final approval to rank candidates and hire them. These feasible but significant changes would restore a critical mechanism for democratic accountability and transparency intended by the Framers.

Via Larry Solum at Legal Theory Blog, who comments:

This is a very sophisticated piece from one of a new generation of originalist scholars who employ corpus linguistics (big data techniques for determining semantic meaning) as part of the investigation of "original public meaning."  One of the very first pieces to do this in a systematic way using the approach developed in linguistics, this is one of those articles that is truly "path breaking."  Highly recommended.  Download it while it's hot!

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.)