Regular readers of this blog (if there is a single such person in the world) know that I am a skeptic about the “originalism” theory of constitutional adjudication. It’s hard to be a historian, to ascertain what the founders may have intended in 1789, and not all of them agreed. And society’s needs have changed over the past 200+ years, with the law having to evolve with that. Indeed, if the founders had an intent, it was probably that we should have a common law system (see the Seventh Amendment!), which could evolve, as the common law did continuously, before and after 1789. Oliver Wendell Holmes, Jr. eloquently expressed this more than a century later, when he wrote The Common Law.
Erwin Chemerinsky, dean at Berkeley Law School, recently wrote a book entitled Worse Than Nothing: The Dangerous Fallacy of Originalism, in which he echoes the many criticisms of that theory made by others, including myself. What I want to focus on, however, is not his book, but a review of it by Adam White in the Wall Street Journal’s weekend Review section. White is a senior fellow at the American Enterprise Institute and a co-director of George Mason University’s Gray Center for the Study of the Administrative State, so you can guess, from his credentials, that he is a critic of Chemerinsky’s criticism.
What is interesting about White’s review, however, is how much validity he concedes to Chemerinsky’s views. He concedes, for example, that originalism is subject to confirmation bias and self-selection of historical sources, as well as historical revisionism. He summarizes Chemerinsky’s arguments, and acknowledges “Some of these criticisms contain a grain of truth.” He admits that some conservative judges employ “originalism” in a result-oriented way, when their originalist obligations should restrain them. White even admits that Justice Antonin Scalia, one of “originalism’s” earliest and strongest supporters, himself recognized how it was all but impossible to execute a rigorous, values-free originalist approach, partly because the concept of perfectly objective, values-free scholarship is a hoax, and partly because judges lacked both the training and the time to be historical scholars.
But to me White’s most shocking concession is that “when the original meaning is in doubt”… which is almost always in modern constitutional litigation…the long-term success of originalism as an adjudicatory theory will depend in part on judicial modesty and restraint, but also on public satisfaction with the substantive outcomes.
Wow. So “originalism” isn’t a deus ex machina or a truth-seeking algorithm after all, and judging consists of more than an umpire calling balls and strikes. Substance and values count too. Isn’t that Mr. Chemerinsky’s point? And doesn’t Mr. White give it all away with that concession?
Originalism isn’t just wrong. It’s an intellectual fraud, a cover for the implementation of conservative values in the courts. It’s time to acknowledge that, as Mr. Chemerinsky and Mr. White have both done.
Richard P. Swanson
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