CONTRIBUTORS

How the scourge of originalism is taking over the Supreme Court

Erwin Chemerinsky
Los Angeles Times (TNS)
The current Supreme Court’s conservatives cite history selectively to justify the legal conclusions they want. (Daniel Slim/AFP/Getty Images/TNS)

In 1987, 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.

Under this view, there would be no constitutional protection for abortion or other privacy rights, no protection for women or gays and lesbians from discrimination, and no right to freedom of speech except for political expression. Bork, who was impeccably qualified, was defeated by the largest margin of any Supreme Court nominee in history.

Senators from both parties voted against Bork because his originalist philosophy was seen as nonsensical and dangerous. It makes no sense to limit the Constitution’s broad language to what was intended in the agrarian, slave society of 1787. Originalism was rightly regarded as a radical approach to constitutional law that would upend decades of precedents in a myriad of areas.

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Now, though, originalism is in its ascendancy on the Supreme Court. 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.

In expanding the scope of the Second Amendment and striking down New York’s law limiting having concealed weapons in public, the court said, “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” In other words, look to the law that existed in 1791 when the Second Amendment was adopted and perhaps to 1868 when the 14th Amendment was ratified.

In the ruling on prayers on a school football field, the court said that in determining the meaning of the Constitution’s religion clauses, “the line that courts and governments must draw between the permissible and the impermissible” has to faithfully reflect “the understanding of the Founding Fathers.” In overruling Roe v. Wade, the court looked at abortion regulation beginning in England and the American colonies and stressed the absence of historical protection of abortion rights in the United States.

The world we live in is vastly different from 1787, when the Constitution was written, or 1791, when the Bill of Rights was adopted, or 1868, when the 14th Amendment was ratified.

Under originalism, Brown v. Board of Education, which ruled that public school segregation violated equal protection under the 14th Amendment, was wrongly decided because the Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools and there was no indication that Congress meant to outlaw segregation. Under originalism, Loving v. Virginia, which declared state laws prohibiting interracial marriage unconstitutional, was wrongly decided because most states had such laws when the 14th Amendment was ratified. Under originalism, Griswold v. Connecticut, which protected a right to purchase and use contraceptives, was also wrongly decided.

Any theory that makes Brown and Loving and Griswold illegitimate is one that should be rejected. Moreover, the assumption of originalism is that there is an “original” meaning for constitutional provisions that can be discovered. The reality is that so many people were involved in drafting and ratifying constitutional provisions, and practices were sufficiently divergent, that it is a fiction to say that there is a clear answer from history that can resolve modern constitutional questions.

The result is that originalists pick and choose from the historical record to support the conclusion they want.

The conservatives on the court ignore originalism when it does not serve their purpose. In 2013, the court declared unconstitutional a crucial provision of the 1965 Voting Rights Act that required states with a history of race discrimination in voting to get preapproval before making significant changes in their election systems. The court said that provision violated the principle of equal sovereignty among the states. But this cannot be historically justified since the Congress that ratified the 14th Amendment also created military rule over Southern states. Likewise, that 1868 Congress adopted many race-conscious programs, such as the Freedmen’s Bureau, which today would be considered affirmative action. Yet there is very little doubt that the Supreme Court in the coming term will overrule decades of precedents allowing colleges and universities to engage in affirmative action.

The implications of a court committed to originalism are frightening. In overruling Roe, the conservative justices said that a right should be protected only if it is in the text of the Constitution or safeguarded by a long unbroken tradition. Adhering to this doctrine would put in jeopardy 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. None of these rights can be justified under the court’s rigid historical focus.

Chief Justice John Marshall wrote in 1819 that ours is “a Constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” The current court ignores this historical truth, and instead misuses history to support exactly the conservative results that it prefers.

Originalism was a destructive approach to constitutional interpretation in 1987, when Robert Bork was rejected for a seat on the Supreme Court. It is no more legitimate or desirable today.

— Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law. His latest book is “Worse than Nothing: The Dangerous Fallacy of Originalism.”