Even the Founders Didn't Believe in Originalism
By: Erwin Chemerinsky (The Atlantic)
I have excerpted parts of this article. The entire thing can be read at the link.
S E E D E D C O N T E N T
To follow the Framers' ideas about the Constitution means abandoning their understanding of it.
By Erwin Chemerinsky Getty; The Atlantic September 6, 2022, 7 AM ETShare
About the author: Erwin Chemerinsky is the dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law. He is the author of Worse Than Nothing: The Dangerous Fallacy of Originalism.
Originalism has reached great heights since it first came about in the 1970s as an obscure legal theory. Most current Supreme Court justices use originalism in their legal reasoning. Adherents believe that the Constitution has a fixed meaning and that it should be interpreted as it would've been back in the 1700s. Critics have made many compelling arguments against originalism, noting that it lends itself to a selective reading of history and that determining the Founders' intent is nearly impossible.
But even where original intent can be known, the Framers likely did not want their views to control constitutional interpretation. Nothing indicates that the original meaning of the Constitution was to create judicial review or, if it was, that it was meant to create originalist judicial review. In fact, the evidence, including the Ninth Amendment, points to the contrary.
Following the original meaning of the Constitution therefore requires abandoning originalism as a method of constitutional interpretation. This, in short, is what I call the incoherence problem.
Originalism is primarily about how courts should interpret the Constitution. That leads to an obvious threshold question: How did the Framers intend the courts to do this? Put another way, what was the original meaning of Article III—the section of the Constitution that creates the federal judiciary—in terms of how judicial review should be performed? This important constitutional question should be analyzed under the same approach as is used for all constitutional interpretation.
......Originalist judicial review is just as incompatible with majority rule as is non-originalism. Under both approaches, unelected judges rule on the constitutionality of actions by popularly elected officials. Originalists like Bork answer that originalist judicial review is democratic because the people consented to adopt the Constitution, and originalism simply follows what was agreed to by ratification. To begin with, it is factually wrong to say that "the people" consented to the Constitution, because less than 5 percent of the population at the time participated in ratification. No women and no people of color participated, and only a small fraction of white men did. Moreover, not a single person alive today—not even a living person's grandfather—voted to ratify the Constitution. If originalists consider it undemocratic that our laws are subject to the approval of unelected judges—who at least die or retire someday and whose replacements are appointed by elected officials—how much more undemocratic is it if society is governed by past majorities who cannot be overruled and are never replaced? Nor can the failure to amend the Constitution be seen as evidence of majority consent, because amendment requires approval by a supermajority: two-thirds of both houses of Congress and three-fourths of the states.
I very much disagree with the originalist premise that American democracy should be defined as majority rule or that this concept of democracy must be reconciled with judicial review. But originalists like Bork, who start with this definition, must confront the problem that all judicial review, whether originalist or non-originalist, is counter-majoritarian.
Assuming that originalists can surmount this problem and somehow make a convincing case that judicial review is justified under the original meaning of the Constitution, they run right into another problem. Even aside from judicial review, the Constitution must still be interpreted by presidents, members of Congress, state legislators, and government officials at all levels. Originalism requires that all of these people ask: What was the original understanding of how the Constitution should be interpreted?
In his 1985 article "The Original Understanding of Original Intent," the law professor H. Jefferson Powell laid out strong evidence that the Framers of the Constitution never meant their own intent to be controlling. At the Philadelphia Convention, the Framers explicitly indicated that they did not want their specific intentions to control the Constitution's interpretation. Years later, James Madison maintained that the Philadelphia proceedings "can have no authoritative character" and that the document coming out of it "was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through [the state] Conventions" that ratified the Constitution in 1787-90. The delegates also took steps to shield convention records from public view. They met under a rule of secrecy and preserved the records' confidentiality when they adjourned by depositing the documents with George Washington. The records remained in "confidential limbo" until 1818, when John Quincy Adams organized and published them.
Those looking for evidence of original meaning in the Philadelphia debates often use Madison's notes. These are apparently the most comprehensive of several unofficial reports, yet they covered no more than 10 percent of the proceedings. Madison himself treated his notes as private property because he thought that the proceedings "could never be regarded as the oracular guide in expounding the Constitution." The late Yale professor Boris Bittker argued that originalists have failed to explain why the Framers' intent should be reconstructed from a private document that Madison intentionally withheld.
If the Framers anticipated that intent would matter in future interpretations, they thought the views of the state ratifying conventions should be considered. As Powell writes: "Only later, during the breakdown of the Republican consensus, did the attention of constitutional interpreters gradually shift from the 'intention' of the sovereign states to the personal intentions of individual historical actors."
.....Bittker commented: "If it were true that the ratifiers wanted their intent to control the courts in deciding constitutional issues, they can be justly accused of gross negligence for failing to take even rudimentary steps to preserve their precious thoughts."
Beyond the text of the Constitution, scant surviving documents record the Framers' intent during the drafting and ratification of the Bill of Rights. The principal version of the House debates was written by an author whom Madison described as "a votary of the bottle," whose reports "abound in errors; some of them very gross." No one recorded the debates in the Senate or the state legislatures. Debates leading up to the later amendments are better documented, but there is still much disagreement about the intent of the Fourteenth Amendment.
Strong evidence supports the conclusion that those who wrote the Constitution preferred that their views not be controlling. Many scholars have argued persuasively that in choosing to write the Constitution in general language, the Framers desired that it evolve via interpretation and, as Justice Felix Frankfurter put it, "gather meaning from experience." Judge Gerard E. Lynch observed that "the framers of particular constitutional provisions consciously intended to leave particular questions of interpretation open for future development by the courts." This is why Chief Justice John Marshall famously declared that "we must never forget, that it is a constitution we are expounding," a constitution "intended to endure for ages to come."
.....Originalism would be justified under its own terms only if there was a basis for concluding that the original understanding of Article III was for judicial review to follow the original meaning of the Constitution. No support exists for such an assertion.
And even when the focus is on discovering original meaning rather than intent, the Framers' intent is still relevant. There are no words in the text to interpret concerning the power of constitutional judicial review, so original meaning cannot be ascertained based on the Constitution's language or dictionaries defining it. Contemporaneous practices were mixed; some states had judicial review in their state courts, and others did not. Nor do contemporaneous understandings support the idea that the original meaning of the Constitution was to be controlling in interpreting the document. People were uncertain not only about what the Constitution meant but about what it actually was. "Our constitution," Representative James Jackson of Georgia said in a speech to the First Congress, "is like a vessel just launched, and lying at the wharf, she is untried, you can hardly discover any one of her properties."
During their early debates, many members of Congress assumed that the Constitution was unfinished and that it was their job to help complete it. They embraced Madison's remarks from "Federalist No. 37": "All new laws, though penned with the greatest technical skill … are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."
In that essay, Madison reminded his readers that the medium through which human beings communicate is necessarily "cloudy." "No language is so copious as to supply words and phrases for every complex idea." Regardless of how comprehensive the ideas were, "the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered." This inaccuracy would be amplified "according to the complexity and novelty of the objects defined."
The original meaning of the Constitution, if it included judicial review at all, did not embrace originalism as the method for interpreting the document. Originalism then self-destructs; to follow originalism requires abandoning it.
This article has been excerpted from Erwin Chemerinsky's new book, Worse Than Nothing: The Dangerous Fallacy of Originalism.
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There is no more reason to presume that "originalism" is the proper way to interpret the Constitution than there is to presume the opposite. Whoever is in the majority on the Court will determine what approach is used. Americans who want progress in our society need to pay more attention in the future to who will be appointed if a given person becomes president.
One could argue that if enough "moderate" Americans knew in 2016 that Trump , if elected, would construct a far right majority on the Supreme Court , they would have voted against him and kept him out of office.
The above comment is illogical.
Not sure what "originalism" and Trump have in common, but no laws were broken in his being elected. His appointment of three conservative justices was an expected and acceptable outcome to many.
My point was that we can presume that conservative justices will try to impose originalism on the court. As this article rather elaborately points out , there seems to be no justification for originalism, but it is used to impose conservative outcomes on court cases. Thus, if voters understood the ramifications to the Courts from who we elect, they might vote differently.
What a bunch of codswallop and constructivist gibberish. Originalism didn't emerge in the 1970s. That's 150 years too late. The attempt to overturn the original intent of the Constitution began in the 1820s. The creation of the Democratic Party in the 1820s was to promote and advance constructivist views of the Constitution.
The original intent of the Constitution was to establish a decentralized government with clear division of governing authority protected by checks and balances. A SCOTUS that interprets the Constitution as limiting the authority any branch of Federal government and limiting the authority of the Federal government over state and local governments is conforming to the original intent of the founders. That's what originalism really means.
The constructivist view is that the popular vote overrides the divisions of governing authority embedded in the Constitution. The constructivist view is that the popular vote can can give the President authority over Congress, SCOTUS, and state governments. The constructivist position is that the popular vote provides a mandate for autocratic and dictatorial governing authority. The constructivist view is that an electoral mandate by popular vote does away with the checks and balances embedded in the Constitution.
Originalism, within the context of the seed, protects the original intent of decentralized governing authority. Adopting the constructivist view that a plurality provides a mandate to concentrate governing authority in one branch of government or one level of government is extraordinarily dangerous.
I enjoy Professor Chemerinsky, but this article of his seems fully of logical contradictions. and where it doesn’t do that, it conflates Constitutional interpretation with amendment.
The evidence is that our judicial system exists and functions in contradiction to this assertion. The fundamental job of judges - particularly at the appellate level - is to say what the law means. This is done by following Rules of Construction. The most basic of these rules is to examine the plain language of a law, contract, or whatever text it is upon which the case at bar rests. Failing to reach a satisfactory resolution through that process, the court will move on to other methods.
If the matter has been adjudicated before, the court will look to stare decisis and rely on the reasoning power of earlier courts. But if it’s a new issue or stare decisis proves unhelpful, the court routinely looks to the intent of the authors, using whatever evidence is available to reach an understanding of their intent. They don’t abandon this option just because evidence is limited. Furthermore, it’s rational to assume that the writers had an intent and tried to codify it in their writings. So the idea that we should try to ascertain the intent of the writers of the Constitution is not only reasonable, it is consistent with the way our system practices law every day.
I don’t see what the Ninth Amendment has to do with this at all, and he doesn’t explain it.The Ninth Amendment simply makes plain that the preceding eight amendments are not an exhaustive list of rights retained by the people.
That doesn’t mean we shouldn’t make the attempt. The meaning of law has to come from something other than just pulling it out of our butts.
I want to feel like the old man has a good point to make here, and that I just don’t love the way he did it. But he also seems to be saying that since we have limited evidence for the framers’ intent, we should abandon all attempts to discern it. I don’t think that can be justified.
Ehh, I think that’s wrong. At best, it’s poetic and shouldn’t be taken literally. I can tell a newly launched vessel is a boat just by looking. Without trying it out, I can see is if it’s a pleasure craft or a warship. I have a sense of how many people it will hold and even how far it might travel. And if I wasn’t sure, I could always ask the ship builder what he was trying to achieve with its construction. The law is not some completely open-ended thing left to infinite levels and variety of interpretation.
Now I will say that a strict construction approach will not answer all questions. It will not answer the question “what is liberty?” or “what is due process of law?” It can’t. For those things, we also look to our traditions, but we also have to acknowledge evolving concepts of liberty and due process. And that is allowed, I think, because the Constitution does not forbid it.
I reject the the approach that legal interpretation must be one way or the other in all things. There are people who say they are strict constructionists, or originalists, and those who don’t adhere to this approach are activists. I think that binary choice is a false one.