As much as Nino Scalia was hated with a burning passion by most of the criminal defense bar, he had his moments. One such moment was in Crawford, holding that defendant’s right “to be confronted with the witnesses against him” just like the Sixth Amendment said, meant just that. It was a watershed change for criminal defendants, no longer to be left to argue with a lab report. You can’t cross a lab report. And Justice Antonin Scalia made this happen with, wait for it, originalism.
But Dean Erwin Chemerinsky says originalism is terrible, mostly because Amy Coney Barrett says she follows in Scalia’s footsteps as to originalism, making her terrible too.
The problem isn’t that Chemerinsky isn’t a brilliant scholar and highly respected, if very progressive, academic, and so one might expect him to possess some fealty to an honest representation of the arguments he attacks.
Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868.
That’s a sadly fuzzy, and consequently truthy, explanation. Close enough to pass obvious scrutiny by the enemies of originalism, but wrong enough to be wrong. As a method of constitutional and statutory interpretation, originalism means that the words chosen at a point in time mean what the words meant at the time they were chosen.
It doesn’t mean the underlying concepts are frozen in time by the inventions that existed at the time the words were chosen. Indeed, it can mean just the opposite, that words like “due process” or “equal protection” were chosen for the deliberate purpose of being fleshed out in the future. They’re vague words for a reason, so they are susceptible to future molding. If that weren’t the case, they could have been replaced with specifics, limiting rather than holding the potential to expand and shape the process due.
But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that Brown v. Board of Education was wrongly decided in declaring laws requiring segregation of schools unconstitutional.
Surely, Chemerinsky is familiar with the logical fallacy of ad hominem. And yet this is his argument, that because the same Congress did bad things, its ratification of the Fourteenth Amendment compels good people to reject the public meaning of the words it ratified because it was an evil Congress. Not reject the Equal Protection Clause, mind you, because we like that, but reject whatever it is they meant when they approved it in favor of whatever we want it to mean today.
In fact, under 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 original understanding was that only men could hold these offices.
This is where Chemerinsky gives away the game, playing upon the current foolishness for his own ends. The masculine pronoun “he” was used, as a matter of written convention, to include both male and female when it was not directed exclusively to one. If the text made clear that they were talking only about a male, the pronoun “he” would be used. If a female, then it would be “she.” If both, then it was “he” again. You don’t have to like the convention anymore, and as some believe, choosing personal pronouns is a right even if a silly indulgence, but that doesn’t change the original public meaning. By using “he,” it referred to either male or female. Erwin knows this, even if he’s trying to play the crowd.
Originalism isn’t, and shouldn’t be, a religion, as Chemerinksy’s nutpicking of Bork suggests. It doesn’t answer all questions, whether because legal history isn’t an exact science or because words were chosen precisely for their malleability. Maybe it was about disagreement with the specific language way back when. Maybe Madison, Jefferson and Hamilton were at each other’s throats about what should be said, and cobbled together the best compromise wording possible to make the Constitution happen.
But what originalism is not is an invitation to ignore the language of the Constitution and frolic down a path of personal self-indulgence. As lawyers of a certain age were taught, the Constitution was a “living document,” one to be shaped and molded to achieve what was sincerely believed to be “justice.”
On the one hand, it gave us such critical seminal cases as Gideon v. Wainwright, Brown v. Board of Education and Loving v. Virginia. It also gave us the automobile exception to the Fourth Amendment, Whren, Heien and list of excuses for introducing evidence without a witness to confront. As much as advocates emphasize the good caselaw, ignoring the bad caselaw, it doesn’t go away.
As a young lawyer, I, too, would have overlooked Chemerinsky’s deliberately mediocre arguments in the aspirational belief that the sword of rightness would only cut my way. What else could it do, since my values were the good values, and surely the good values would prevail? But over time, the other edge of the sword has cut me too many times, and not always for the wrong reasons.
I’ve also come to realize that there were legitimate values that didn’t align with mine, no matter how absolute I was as an angry young man that I was right. I’ve come to appreciate that such limits on interpretation may mean I can’t always get what I want. But then, neither can my adversaries. This is something Chemerinsky fails to confront in his condemnation of originalism, and he can thank Nino Scalia for holding the Constitution to its original meaning for that right.