Bench Memos

Law & the Courts

Erwin Chemerinsky’s Obstinate Bad-Faith Caricature of Originalism

Berkeley law school dean Erwin Chemerinsky’s constitutional views can blow with the political winds. For example, he supported the filibuster of Samuel Alito’s Supreme Court nomination in 2006 (Chemerinsky, Democrats Must Use the Filibuster to Block Alito, The Herald-Sun (Durham, NC), Jan. 29, 2006); reversed course in 2016 when the Scalia vacancy was pending and adopted the “silly” and “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on President Obama’s nomination of Merrick Garland (a duty that would render the filibuster constitutionally impermissible); and then reversed course yet again in February 2017 when he called for Senate Democrats to filibuster the nomination of Neil Gorsuch.

But on one matter Chemerinsky has been obstinately consistent: his bad-faith caricature of originalism. His New York Times op-ed today against the confirmation of Amy Coney Barrett is very much a copy-and-paste repeat of his February 2017 op-ed.

Chemerinsky makes a hodgepodge of arguments, and I’m not going to try to address them all. But let me pick out a few:

1. Chemerinsky contends that originalism “would mean that Brown v. Board of Education was wrongly decided.” He doesn’t inform his trusting readers that prominent originalists (including Michael McConnell and Robert Bork) have argued otherwise or that Judge Barrett herself testified that she had said “in lectures that Brown was correct as an original matter.” His lead evidence in support of his contention—that the “same Congress that voted to ratify [sic*] the 14th Amendment … also voted to segregate the District of Columbia public schools”—is wrong (and would be of dubious relevance if it were right). As I wrote in this essay fifteen years ago:

[T]he 37th Congress created segregated public schools for black children in D.C. in 1862, but it was a later, different Congress—the 39th—that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868. As the brilliant scholar … Michael McConnell explains in his 1995 Virginia Law Review article “Originalism and the Desegregation Decisions”: “At no time after the Fourteenth Amendment did Congress vote in favor of segregated schools in the District [of Columbia] (although Congress appropriated money for the segregated schools that already existed).” In addition, the restrictions of the Fourteenth Amendment apply only to states, not to Congress, so congressional action with respect to D.C. schools provides a shaky foundation for any inference as to the contemporaneous understanding of the Fourteenth Amendment.

2. Chemerinsky contends that Chief Justice John Marshall’s landmark opinion in McCulloch v. Maryland (1819) amounts to a “rejection of originalism.” But as Justice Scalia explained more than thirty years ago, Marshall made his famous statement that “we must never forget that it is a Constitution we are expounding” in the context of construing Congress’s powers. As Marshall put it (emphasis added):

The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

In short, Marshall, who explicitly invokes the “framers” three times, is making an originalist argument against construing Congress’s “great powers” narrowly. He is arguing that it is the processes of representative government that enable our constitutional system “to endure for ages to come” and “to be adapted to the various crises of human affairs.” He is thus rejecting the modern living-constitutionalist project of inventing supposed constitutional rights that prevent the processes of representative government, both in Congress and in the states, from adapting to changing circumstances.

The broad play that originalism gives to the democratic processes also fully answers Chemerinsky’s argument that “it is a myth to think that even identifying an original understanding can solve most modern constitutional issues.” His argument probably has less force against the dominant “original meaning” version of originalism than against the “original understanding” version. In any event, in instances in which originalism can’t “solve” a constitutional issue, judges should defer to democratic enactments, not impose Chemerinsky’s favored policy.

3. Chemerinsky descends into utter absurdity when he makes this argument:

[U]nder 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 [the] original understanding was that only men could hold these offices.

The Constitution in several instances uses the pronoun “he” for the president and vice president. But, as Bryan Garner’s A Dictionary of Modern Legal Usage puts it (and as I would have thought would be common knowledge), the “traditional view” in English usage, dominant at the time of the Framing up into the 1970s, “was that the masculine pronouns are generic, comprehending both male and female.” It’s one thing to decry this convention; it’s another thing to deny it; and it’s quite something else yet to seem to be oblivious to it. Yet Chemerinsky manages that third option.

Chemerinsky also ignores the actual eligibility criteria that the Constitution sets forth for the president (and, derivatively, for the vice president):

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, 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, and been fourteen Years a Resident within the United States. [Emphasis added.]

Nothing in these criteria requires that the president be male. On the contrary, any “Person” who meets those criteria is eligible.

In asserting that the “original understanding was that only men could hold these offices,” Chemerinsky evidently confuses who he thinks the Framers subjectively expected would serve as president and vice president with the entirely different question of what the text of the Constitution means.

4. Clipping one sentence out of context, Chemerinsky falsely contends that Judge Barrett’s “scholarly writings suggest she would have no hesitation in overruling” non-originalist precedents. As Barrett testified at her hearing (and as I have explained repeatedly in response to similar distortions), her writings embrace an entirely conventional view of stare decisis that takes into account such factors as “reliance interests” and “the cost of upsetting institutional investment in the prior approach.”

5. Chemerinsky understandably obscures what his own alternative to originalism would mean. He wasn’t so coy back in 2016 when he candidly acknowledged that the appointment of Merrick Garland to the Supreme Court would create a liberal majority that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller (2008) and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust). And all of that is before Chemerinsky even began briefly sketching his “dream” agenda.

* Congress proposes amendments; state legislatures ratify them.