Erwin Chemerinsky’s Weak Critique of Originalism - The American Spectator | USA News and Politics
Erwin Chemerinsky’s Weak Critique of Originalism
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U.C. Berkeley Law Dean Erwin Chemerinsky earlier this year (OLLI@Berkeley/YouTube)

Criticisms of originalism are nothing new. The frequency and intensity of originalism’s critics, however, have multiplied since the latest blockbuster Supreme Court decisions on gun rights and abortion.

Berkeley Law Dean Erwin Chemerinsky has added another salvo in his new book, Worse Than Nothing: The Dangerous Fallacy of OriginalismAn excerpt of the work appeared recently in the Atlantic.

Judging from that excerpt, his case against originalism is weak. In fact, upon fuller inspection, the very sources to which Chemerinsky turns often lend support to the originalist position.

To see how Chemerinsky’s attacks fail to land, we must understand originalism’s central commitment and its core insight. Originalism holds the equal, known, and consistent rule of law above the biased, enigmatic, and ever-changing rule by personal fiat. But what conditions prove conducive toward this end? In answer, originalism’s central insight contended that the rule of law required fidelity to the law’s meaning at the time of its enactment.

Chemerinsky argues that this insight “first came about in the 1970s as an obscure legal theory.” Its obscurity then says more about the woes of legal interpretation at the time than about originalism’s historical grounding. For originalism retrieved and revived longstanding principles of legal interpretation ignored or distorted by the Warren Court of the 1950s and 1960s.

William Blackstone, for example, wrote the most influential legal commentary for 18th- and 19th-century American lawyers, declaring one should be bound by the original lawmaker’s intent when interpreting laws. “The fairest and most rational method to interpret the will of the legislator,” he argued, “is by exploring his intentions at the time when the law was made.” The Swiss jurist Emmerich de Vattel, whose works also greatly influenced early American lawyers and politicians, wrote:

Every deed, therefore, and every treaty, must be interpreted by certain fixed rules calculated to determine its meaning, as naturally understood by the parties concerned, at the time when the deed was drawn up and accepted.

Finally, we have the words of Justice Joseph Story, whom Chemerinsky quotes to argue for the difficulty of knowing the original intent of the Constitution’s ratifiers. Story, however, argued for an originalist approach to interpreting all laws, including the Constitution. In his commentary on the Constitution, he wrote: “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.”

Chemerinsky also argues that Article III does not explicitly vest the power of judicial review in federal courts. Since much of originalism gets practiced by judges, he argues that this point traps originalism between a rock and a hard place. To follow originalism requires denying the legitimacy of the primary tool used to practice originalism.

Yet his argument on this point proves surprisingly weak. Article III doesn’t mention judicial review in so many words. But the nature of the judicial power vested by Article III requires it. Chemerinsky mentions Federalist 78 in passing as supporting this view. Yet he doesn’t engage with its argument, instead calling it “a flimsy basis for such a consequential authority.” This assertion undersells the contemporary and subsequent importance of those essays, which Thomas Jefferson called “the best commentary on the principles of government which ever was written.” Federalist 78 in particular made the argument found in Marbury v. Madison 15 years before the Supreme Court decided that seminal case.

Let us summarize that argument. Article III gives the national judiciary the power to decide certain kinds of “cases” and “controversies.” They must determine who should win between disputants that come before them in courts. They must make that determination by assessing the competing claims against the standard of the law. This law comes in several forms, including statutes passed by Congress as well as treaties, but also the Constitution itself, whose Article VI is — quite clearly— a law unto itself. The judge must rule on the litigant on whose side the law resides.

Yet what happens when one litigant (rightly) claims a law passed by a state or by Congress agrees with him while the other (also rightly) asserts that the U.S. Constitution sides with her? A judge can only apply one standard of law when two different ones conflict. Returning to Article VI, the Constitution pegs itself as the “supreme law of the land.” It forms the highest written law from which all other laws obtain their legitimacy and to whose principles they must conform. Thus, if the judge only can follow one law, she must apply the Constitution instead of any other, lesser, conflicting rules. To deny this train of logic rejects the judicial power as one of law interpretation or the Constitution’s self-defined status as either a law at all or as the supreme law. To accept it admits that originalism affirms judicial review.

Yet Chemerinsky thinks he has an ally for his anti-originalism in Marbury’s author, Chief Justice John Marshall. Marshall did write, as Chemerinsky quotes, that “we must never forget that it is a constitution we are expounding,” and that the Constitution was “intended to endure for ages to come.” But this quote offers nothing conclusive on how Marshall thought of an originalist approach to interpretation. Far more helpful are Marshall’s words in Osborne v. United States:

Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.

The judge, then, must seek out that will of the lawmaker, itself the law’s will, as part of legal, including Constitutional, interpretation.

Finally, Chemerinsky claims that we could not exercise originalism if we want to because finding what the law meant at first is too often impossible. He turns to another Federalist Paper, number 37, to support this point. There, James Madison made the case that words can fail to render with precision their intentions and that human fallibility can distort that rendering further.

This argument makes a fair point about the limitations of human language, a point that affects the rule of written law. We will have instances where a law’s language is not perfectly clear, resulting in disagreement about its meaning. But in the service of attacking originalism, Chemerinsky’s argument proves too much. It calls into question, not just originalism, but all law carte blanche. It denies the rule of law because it denies one can understand laws objectively and thus bindingly. Doing so not only undercuts the vital principle of law’s rule; this perspective disparages what Chief Justice John Marshall called, in Marbury v. Madison, “the greatest improvement on political institutions — a written constitution.” Originalism shows a better route because it holds to a better faith. It seeks methods to mitigate disagreement about laws’ meaning because it first believes that meaning can be objectively ascertained in those laws.

Originalism emerges from these attacks largely unscathed. Chemerinsky’s critiques do little to undermine originalism’s strength as the best approach to upholding the Constitution and preserving the rule of law. His condemnations against originalism are far from the first. Given Progressive anger at the current Court, they hardly will be the last. But, unless opponents up the quality of their arguments, originalists hardly need to fear.

Adam Carrington is an associate professor of politics at Hillsdale College.

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