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September 13, 2022

Why the Left Hates Constitutional Originalism

The Supreme Court’s conservative majority has made its presence felt by getting back to the Constitution’s original meaning.

Elections have consequences, and nowhere is this more apparent than in our third branch of government: the judiciary.

For example, Cal-Berkeley Law School Dean Erwin Chemerinsky is schlepping a new book, Worse Than Nothing: The Dangerous Fallacy of Originalism, about the horrors of the Supreme Court’s 6-3 conservative (sort of) majority and the philosophy that now increasingly guides its rulings: originalism — which asserts that a legal text bears the meaning that it had when it was adopted.

But Chemerinsky wouldn’t have had reason to write any such book if things had worked out differently at the polls on Tuesday, November 8, 2016. As lefty Paul Rosenberg laments in Salon: “If Hillary Clinton had won the presidency in 2016 and if she had replaced Justices Scalia, Kennedy and Ginsburg, we wouldn’t be talking about originalism today. It would be a fringe theory on the Supreme Court that a group of conservative law professors kept alive. But Trump appointed three conservatives, joining conservatives who were already there, and that is causing originalism to be in the ascendancy.”

Indeed, here we are, and those on the Left are gnashing their teeth because their ability to get the courts to give the power of law to what they could never pass legislatively has been foiled by five conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — and one squishy chief justice, John Roberts, who sadly seems more interested in being liked by the Left than in being right on the law.

Originalism is indeed in its ascendancy on the Supreme Court, and Chemerinsky doesn’t like it. In a recent LA Times op-ed, he refers to “the scourge of originalism,” writing: “In case after case in the last term, the conservative justices based their decisions on their cramped reading of American history. Under that erroneous analysis, they found no constitutional right to abortion, a broad constitutional right to have concealed weapons in public, a constitutional requirement for government to subsidize religious schools, and a constitutional right for high school coaches to lead prayers at school football games.”

Chemerinsky thinks this “erroneous analysis” should bow to the Left’s long-held and much-loved “living constitution,” which holds that the Constitution means whatever the political and judicial whims of the day say it means — “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,” as Thomas Jefferson once warned.

This belief, this “living” belief, has resulted in all manner of unconstitutional rulings over the years, including the worst ruling of all, the court’s 1973 Roe v. Wade decision, which was earlier this year finally and gloriously overturned by the Dobbs v. Jackson Women’s Health Organization decision. The “living constitution” approach has also been used to erode our Second Amendment rights, and to grow an increasingly oppressive regulatory state, and to generally undermine other liberties the Founders had naturally envisioned and expected.

The late, great Justice Antonin Scalia helped usher in this new era of originalism beginning in 1986, when he was nominated to the Supreme Court by Ronald Reagan and confirmed by a resounding 98-0 vote. (Try getting 98 senators to agree on anything today — much less a Supreme Court justice.) As Scalia’s son Christopher and Ed Whelan note in Scalia Speaks, his proposal to rebrand “original intent” as “original meaning” laid the foundation for the conservative judicial philosophy we see on the High Court today. “The ‘original meaning’ approach,” they write, “which aims to discover the original public meaning of the Constitution’s provisions rather than the subjective intentions of the Framers, soon became the dominant school of originalism — thanks in large part to Scalia’s continued advocacy and to the powerful example of opinions as a justice.”

Somewhere, Robert Bork must be smiling. “In 1987,” Chemerinsky writes, “the Senate resoundingly rejected the nomination of Judge Robert Bork for the Supreme Court because it found his originalist views unacceptable. As a law professor, Bork argued that the meaning of a constitutional provision is fixed when it is adopted and can be changed only by amendment.”

Chemerinsky continues: “Bork, who was impeccably qualified, was defeated by the largest margin of any Supreme Court nominee in history.”

Indeed, he was, but that didn’t make it right. Bork was viciously smeared by the likes of then-Senate Judiciary Committee Chairman Joe Biden and especially by committee member Ted Kennedy, and the Supreme Court nominating process hasn’t been the same since. Said Chappaquiddick Ted at the time: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.” (It’s a republic. But whatever.)

None of this ever came to pass, of course. Nor will Chemerinsky’s hysterical warnings of originalism jeopardizing “the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right of consenting adults to engage in private consensual sexual activity, and the right of competent adults to refuse medical care.”

Chemerinsky is simply on the wrong side of originalism, and thus on the wrong side of a monumentally important legal revolution. And, hey, he’s got a book to sell.

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