Chemerinsky Hates Confrontation

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 Times probably meant “our rights,” but who’s to say what the right word is anymore?

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.

26 thoughts on “Chemerinsky Hates Confrontation

    1. norahc

      So Erwin Chemerinsky is okay with “Originalism” when it comes to the Second Amendment, but not the rest of them?

      1. DaveL

        He most certainly would not accept an originalist interpretation of the 2nd Amendment, unless it were his clownish caricature of originalism that imagines the Framers as incapable of “originally intending” broad or general categories and concepts.

  1. Alex Sarmiento

    I truly believe that Justice Scalia won the honest debate when he made the case for Originalism as the best philosophy. But he was aware of the disadvantage imposed by the more emotional argument of the living constitution. “The living constitution implies that the originalist constitution is dead. Nobody wants to cheer for a dead constitution”

      1. Alex Sarmiento

        If these ridiculous but popular counter arguments against Originalism are any indication of who really won the honest debate, I am willing to “strenuously” object the notion of “living constitution” from now on.

  2. John Barleycorn

    So many ways to roll and you choose to go with “legitimate” and “good” to tag onto values.

    Is that like good value word shopping and do you need coupons?

    Practical merit that is useful is hard to find these days.

  3. C Streak

    No, 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 because (it must have thought that) that public meaning permitted those bad things.

  4. Harvey Silverglate

    A former law partner of mine, who later became a federal judge and is now teaching law school, had a very pithy way of dealing with these conundrums when one undertook the treacherous task of interpreting provisions of the Constitution and, in particular, such fuzzy concepts as “due process of law.” “The law,” my former partner concluded, “is silly putty.”

  5. C Streak

    No, it’s a well known argument that doesn’t need to be spelled out yet again, especially Chemerinsky’s statement is clear enough. But, hey, we live to please:

    The Fortieth Congress segregated schools, so it must have favoured school segregation, so it wouldn’t have banned school segregation, so, since it passed the Fourteenth Amendment, the Fourteenth Amendment, as originally understood, didn’t ban school segregation, so, if originalism is right, the Fourteenth Amendment doesn’t ban school segregation, so Brown is wrong; but Brown is right, so originalism is wrong.

    1. SHG Post author

      First, there’s the reply button. Like everyone else, you should use it.

      Second, the question wasn’t really about what the argument was, but that it’s midwit sophistry, not logic. Sorry I didn’t explain that using smaller words.

      1. C Streak

        The question isn’t whether the argument is logic or sophistry, but whether it’s an ad hominem. It isn’t.

        1. SHG Post author

          Isn’t it? A vapid attempt to manufacture a bad rationalization to conceal the real argument, that it was an evil Congress and so anything it did was evil, doesn’t make it not an ad hominem. Making up bad excuses to conceal the real reason doesn’t mean it wasn’t an ad hominem. It’s just ugly lipstick on an even uglier pig.

  6. C Streak

    Yup, turns out, if you substitute a weaker and nastier argument for the argument he actually does make, that Chemerinsky looks pretty bad. Then again, the argument he does make is just boringly basic:

    The single piece of evidence most often cited in support of the proposition that the framers of the Fourteenth Amendment did not deem school segregation unconstitutional is the fact that the schools of the District of Columbia, under the direct constitutional authority of Congress, remained segregated by law during the entire period of proposal, ratification, and enforcement of the Amendment … (McConnell, “Originalism and the Desegregation Decisions”)

    1. Miles

      Not only do you blow the reply button again, but you blow your argument. Chemerinsky doesn’t say what you think he says, but merely the ad hominem that you so desperately and poorly try to pretend isn’t. It’s understandable that you’re so locked into your delusion that you can’t see what’s in front of you, but the rest of us can. This is a Rule of Holes situation. Stop digging.

      1. C Streak

        Abuse isn’t argument. This is:

        1) There’s no explicit ad hominem in C’s article. SHG claims that C argues that Congress and its actions were bad and evil, but C doesn’t say that; he doesn’t speak any moral judgement against them.

        2) Still, SHG claims to find an argumentum ad hominem there implicitly:

        … 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.

        … it was an evil Congress and so anything it did was evil …

        Again, none of this is in the actual text Still, it might be filling in gaps in the argument that C did make explicitly. So how well does it link up with that? Badly:

        2.1) C doesn’t say that we should reject original public meanings because ratifiers were evil people; he says we should reject them because they’d lead to “terrible results”.

        2.2) In particular, “Following originalism would mean that Brown v. Board of Education was wrongly decided”. Congress’s actions are relevant to that claim, to the extent that they cast light on its understanding of the 14A; whether those actions were evil is irrelevant. Whether Congress was evil is even more irrelevant.

        3) “Congress segregated schools => Congress didn’t think segregation unconstitutional”: as the McConnell quote says, that’s an argument made many times by legal scholars; as such, C would be familiar with it; it makes sense that he’d use it, for that reason, and because it’s one that can be made quickly to a lay audience.

        4) On that interpretation, C’s third paragraph is coherent: (Sentence 2) Originalism would lead to terrible results, (s. 4) in particular, invalidating Brown, (s. 3) because Congress’s own actions show that the 14A wasn’t understood to ban segregation. On SHG’s, it’s incoherent. So SHG’s is probably wrong.

        5) On the ad hominem interpretation, any old dirt would do to blacken Congress’s name; that the dirt actually used happens to be relevant to 14A interpretation is just some strange coincidence. Here too, the other interpretation fits better.

        1. Skink

          Congratulations! You are the stupidest person to visit this here Hotel in the last month! For your efforts, you get a hat. Well, you don’t really get the hat. We know you won’t wear it, as it says you’re a dope. Who’d wear such a thing?

          To eradicate your future stupid efforts, I’ll tell you what you probably don’t know: the Hotel is populated by lawyers and judges. See the blue box at the top of the page? That’s us. We think and reason for a living. We do law. You don’t, and we know it because you spelled a word as no lawyer would.

          Some of your pals think you’re brilliant and you think the same. You aren’t, and we know it. You should probably hang out with your pals–you’ll get a better reception.

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