Review: Erwin Chemerinsky, Worse Than Nothing: The Dangerous Fallacy of Originalism (Yale University Press)
In 2010, the United States Supreme Court heard oral arguments in a case involving the constitutionality of a California law that prohibited the sale or rental of violent video games to minors without parental consent. California legislators, shocked by some games’ graphic violence, credited studies that showed a correlation between such games and violent behavior, a correlation that did not exist for comic books, television programs, or movies. The law was challenged as a violation of the free speech clause of the First Amendment to the United States Constitution. At the oral argument before the Court, the late Justice Antonin Scalia pressed the lawyer for the State of California to explain whether the law could be reconciled with the original understanding of the First Amendment, an amendment which became part of the Constitution in 1791. Justice Samuel Alito then jumped into the exchange, trying to help the lawyer: “I think what Justice Scalia wants to know is what James Madison thought about video games.”
Justice Scalia’s interest in the understanding of the First Amendment in 1791 and Justice Alito’s odd intervention highlighted an approach to constitutional interpretation termed “originalism,” an approach which maintains that all such interpretation should center upon the original understanding of the constitutional provision at issue. As Erwin Chemerinsky, currently dean of the law school at the University of California, Berkeley, explains in Worse Than Nothing: The Dangerous Fallacy of Originalism, the central belief of originalism is that the meaning of a constitutional provision is “fixed when it is adopted and can be changed only by amendment.”
To Chemerinsky, the exchange at the highest court in the United States involving James Madison’s view of video games demonstrates the absurdity of the originalist approach. Our world today, he notes, is “vastly different from that which existed at the nation’s beginning. There are countless questions for which originalism can provide no answer” (in 2011, the Court found the California video games law unconstitutional, with Justice Scalia writing the opinion in a way that Chemerinsky finds had little to do with originalism). While some of the country’s leading constitutional scholars have advanced sophisticated academic critiques of the originalist approach to constitutional interpretation, Worse Than Nothing appears to be the first on the subject for general readers, easily comprehensible to those who are neither lawyers nor constitutional scholars.
For its proponents, the originalist approach is the only theory of constitutional interpretation consistent with majoritarian democracy. It is neutral and value-free, they contend, restraining judicial decision-makers from imposing their personal values under the guise of interpreting constitutional provisions. It alone prevents unelected judges and justices, who enjoy life tenure, from functioning as an unelected super-legislature. Chemerinsky dismisses these justifications as high-level sophistry. Constitutional decision-making based on the original understanding is “only a fig leaf allowing a justice to pretend to adhere to a neutral method while advancing a conservative political ideology,” he writes.
If there is an undemocratic aspect to unelected justices disallowing laws and acts of government enacted through the political process, a point Chemerinsky concedes, at least those justices die or retire, with replacements appointed by elected officials. How much more undemocratic is it, he asks, “if society is governed by past majorities who cannot be overruled and are never replaced?” Why, moreover, should we “reject all the wisdom and experience gained since a constitutional provision was adopted? It is hard to fathom why one would prefer such ignorance.”
Chemerinsky traces the modern version of originalism to Robert Bork, who in 1971 argued in a famous Indiana Law Journal article that the Constitution did not recognize a right of privacy, and the Court was wrong to protect it (two years later, in Roe v. Wade, the Court extended the right to privacy to include a woman’s decision to terminate her pregnancy). Although Bork was subsequently nominated for the Supreme Court by Ronald Reagan in 1987, he was eventually forced to withdraw after a series of contentious confirmation hearings before the Senate Judiciary Committee, presided over by 44-year-old Senator Joe Biden. In these hearings, Bork’s commitment to originalism was the primary basis for the rejection of his nomination.
Chemerinsky credits Bork with being far more honest about his judicial approach than more recent nominees, but he was unable to escape the clear position he had articulated in his 1971 article. He failed to win over a majority of senators “not because his positions were mischaracterized but precisely because he had set them out so clearly. The senators saw his originalist views as too dangerous for constitutional rights,” Chemerinsky writes.
Today, three current members of the Court are explicit proponents of originalism, Justices Thomas, Gorsuch, and Barrett, with Justice Alito and Chief Justice Roberts also leaning in that direction. Numerous lower court judges, especially those appointed by former President Donald Trump, also consider themselves originalists. A fringe theory that started out primarily as a vehicle to criticize some of the Warren Court’s decisions of the 1950s and 1960s has become decidedly mainstream. But for Chemerinsky, that only increases its danger.
The Supreme Court’s decision overruling Roe v. Wade on an originalist basis in Dobbs v. Jackson Women’s Health Organization (2022) paves the way for erasing other widely accepted rights that are not enumerated in the Constitution’s text, Chemerinsky contends, including the right to marry, to control the upbringing of one’s children, to purchase and use contraceptives, and to engage in same sex sexual activity. He is particularly troubled by several recent cases providing a questionable originalist interpretation of the First Amendment’s religion clauses, which aim to avoid the establishment of religion and protect its free exercise. These cases see “no constitutional limit on making religion a part of government activities, such as through prayer or religious symbols, provided that there is no coercion” and have allowed people to claim exemption from the general application of civil rights law on the basis of their religion – for example, an exemption from laws outlawing anti-gay discrimination for a web designer who contended that being required to make wedding websites for gay couples infringed his religious freedom. The Court’s application of originalism in these and numerous other cases should make us “very afraid” of where that approach will lead, Chemerinsky warns, “afraid for the future of constitutional rights and equality.”
Chemerinsky’s title can be traced to Justice Scalia, the first proponent of originalism to reach the Supreme Court in the modern era. A playful linguist who could add light touches to the most serious arguments, Scalia was aware of the many inconsistencies in originalism that academics had underscored. He was fond of retorting that at least originalism was a theory, whereas non-originalists had no counter-theory – flawed though it may be, originalism was still better than nothing. Chemerinsky seeks to persuade his readers that contrary to Justice Scalia, originalism is “worse than nothing,” far worse. Even readers not convinced that he reaches this overall objective are likely to admit that he makes some formidable arguments along the way, particularly when he highlights a host of conceptual anomalies that undermine the originalist theory.
The most glaring anomaly is what he terms the “coherence problem,” the simple fact that what is commonly termed “judicial review” is not provided for in the United States Constitution. The Constitution contains no authority for the judiciary to determine the constitutionality of the acts of other branches of the federal government or of the individual states. A commitment to originalism should therefore require abandoning judicial review altogether, Chemerinksy argues, as “it is incoherent to seek the original meaning for how the courts should exercise a power when there is no indication that the original meaning of the Constitution was ever to give them that power.” Of course, American courts have been practicing judicial review since the landmark 1803 decision Marbury v. Madison established the practice, and no originalist has argued that courts should abandon judicial review altogether.
But the coherence problem has a second dimension: there is no evidence that Article III of the Constitution, which establishes the judicial branch of the United States government and delineates the scope of federal court jurisdiction, “included the understanding that courts should interpret the Constitution based on its original meaning.” To the contrary, evidence from the period suggests that “constitutional interpretation was never intended to be a quest for original understanding.” There is, Chemerinsky argues, “every reason to believe that the original meaning of the Constitution, if it included judicial review at all, did not embrace originalism as the method for interpreting the document.” Chemerinsky cites several constitutional clauses written in broad, open-ended language (“speech,” “taking” of property, “cruel and unusual punishment,” “due process of law”). There is strong evidence that these provisions were intended to “gain meaning over time,” he contends. Jefferson, for one, insisted that constitutions should not be regarded with “sanctimonious reference” and that law and institutions must develop “hand in hand with the progress of the human mind.”
Beyond these threshold coherence problems lies what Chemerinsky terms the “inherent epistemological problem”: in most cases, there is no single “original understanding” to be discovered. “Rarely does any constitutional provision have a clear original meaning or provide an unequivocal basis for deciding a specific case,” he observes. Instead, there is almost always a “range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.” Justices of any stripe can “pick and choose the sources that support the conclusion they want, and then declare that that is a constitutional provision’s original meaning.”
Then there is the “repugnancy problem,” which Chemerinsky considers the gravest deficiency of originalism: the original understanding, when it is discernible, often leads to abhorrent results. The most glaring example is racial segregation under the equal protection clause of the Fourteenth Amendment. The evidence is overwhelming that those who proposed and ratified the amendment did not understand that clause as outlawing racial segregation. Serious originalism should lead to only one result, that racial segregation is constitutional and the decisions invalidating it have been wrongly decided, starting with the 1954 landmark Brown v. Board of Education decision that proscribed racial segregation in public schools. Thankfully, no one on the Supreme Court and none of the academic advocates of originalism have come out publicly for overruling the Brown decision.
Some originalists have justified Brown and other decisions which do not comport with a strict application of the original understanding by defining the understanding in a more general and abstract way. One academic promotes “inclusive originalism,” which allows judges to consider precedent, policy, or practice but “only to the extent that the original meaning incorporates or permits them.” Another espoused “living originalism,” in which each generation must decide “how to make sense of the Constitution’s words and principles.”
While these two versions of originalism allow the meaning of the Constitution to change over time, they are far from the originalism of Justices Scalia and Thomas, and in Chemerinsky’s view render originalism indistinguishable from non-originalism. Defining the original understanding in an abstract and general way can justify “literally any result and does nothing to restrain judges from ruling according to their personal convictions,” he argues. This is the “central paradox of originalism”: there is “no middle ground.” Either originalism “constrains at the price of unacceptable outcomes, or it offers no constraints and is not really originalism at all.”
Chemerinsky highlights how originalists often abandon their theory altogether when it does not yield the result they want. This “hypocrisy problem” undercuts any claim that originalism “actually constrains judging and suggests instead that it is not a theory of judging at all but only a rhetorical ploy to make it appear that decisions are based on something other than political ideology.” Chemerinsky devotes an entire chapter to cases where conservative ideological positions were “clear and strongly held” and that ideology, not the original meaning, appeared to control the originalist justices’ rulings.
In Shelby County v. Holder, the Court held unconstitutional a critical section of the Voting Rights Act of 1965 requiring jurisdictions which have in the past committed voting discrimination to gain preclearance from the Department of Justice or a federal court before making changes to voting procedures. The Court found that the preclearance provision violated the principle of “equal state sovereignty,” a principle which the Court “invented” that “appears nowhere in the text and is contrary to the original understanding of the Fourteenth Amendment.” In Citizens United v. Federal Election Commission, the Court held that the free speech clause of the First Amendment protects the right of corporations to spend unlimited amounts of money to support or oppose candidates in election campaigns, a “risible” interpretation of the original understanding of that amendment. “Those who drafted and ratified the amendment could not have imagined campaign spending as it exists in the twenty-first century, let alone the wealth of modern corporations and their ability to spend that wealth to influence elections,” Chemerinsky writes.
To avoid the anomalies and hypocrisies of originalism, Chemerinsky advocates what he terms “non-originalism.” Rather than an identifiable school of thought, “non-originalism” is best thought of as a shorthand for the way most justices not swayed by originalism have approached constitutional interpretation. Non-originalism does not exclude examining original understanding, to the extent it can be ascertained, but the inquiry rarely stops there. Additional sources non-originalist judges look to include the constitution’s structure, relevant precedents, traditions, modern social needs and, occasionally, foreign laws and practices. Chemerinsky considers the expression “living constitution” a useful and evocative way to describe a document whose meaning “changes over time as it is interpreted in specific cases.”
But the expression “living constitution” is a lightning rod for judicial conservatives. Justice Scalia liked to counter by saying that the Constitution was “dead, dead, dead.” If originalism produces outcomes unacceptable in the modern age, the originalist answer is to point to the constitutional amendment process as the obvious means to rectify unpopular results. In 1895, for example, the Supreme Court declared a federal income tax unconstitutional, a decision that was in effect overruled with the ratification of the Sixteenth Amendment to the Constitution in 1913.
Amending the United States Constitution is an arduous process, requiring a majority of both houses of Congress, then approval by the legislatures of three-quarters of the states, or the calling of a new convention by Congress on the application of two-thirds of the states. But the problem with relying upon the amendment process is not that it is inconveniently slow and difficult. Relying upon the amendment process means that the rights of individuals and the protection of minorities from discrimination requires the action of a supermajority. The amendment process is an inadequate answer when it comes to “balancing the majority’s values against the values that should be protected from society’s majorities,” Chemerinsky writes. A minority’s rights “should not depend on the willingness of a supermajority to enact an amendment.”
Balancing of values is an inescapable judicial function which no justice or judge can avoid, Chemerinsky contends, rendering the originalist’s desire for value-neutral judging an “impossible quest.” A justice or judge’s ideology and life experiences “inevitably determine how he or she – or anyone interpreting the Constitution – strikes the balance.” Originalism “only allows conservative justices and judges to pretend that they are following a neutral theory when in reality they are imposing their own values.”
Chemerinsky has no illusions that his lucid, passionately argued work will affect the originalist justices on the Supreme Court and their supporters. But in the court of public opinion, he has presented a remarkably persuasive case.
Image credit: Worse than nothing: The dangerous fallacy of originalism [Cover] (Yale University Press), Fair Use.