Chemerinsky: Originalism has taken over the Supreme Court
Erwin Chemerinsky. Photo by Jim Block.
The U.S. Supreme Court term that ended on June 30 was the most originalist in American history. In case after case, the court professed that the meaning of a constitutional provision is to be determined by the original understanding at the time when it was adopted. Some of the justices—Clarence Thomas, Neil Gorsuch and Amy Coney Barrett—are self-avowed originalists. All of the conservatives often write their opinions in originalist language and sign on to expressly originalist decisions.
For example, in New York State Rifle and Pistol Association v. Bruen, the court struck down a New York law requiring a showing of need to have a permit for a concealed weapon in public. In its 6-3 decision, the court declared: “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.’” The court expressly rejected any balancing of the government’s interests in regulating guns with a claim of Second Amendment rights. Justice Thomas wrote, “The Second Amendment ‘is the very product of an interest balancing by the people,’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”
In Dobbs v. Jackson Women’s Health Organization, the court overruled Roe v. Wade. Justice Samuel Alito’s majority opinion said a constitutional right should be protected only if it is in the text, was part of the Constitution’s original meaning or there is a long unbroken tradition. The court concluded that abortion rights meet none of these criteria and thus do not warrant constitutional protection.
In Kennedy v. Bremerton School District, the court concluded that it violated the free speech and free exercise rights of a high school football coach to keep him from praying on the field after games. Justice Gorusch, writing for a six-justice majority, said in interpreting the religion clauses, “’The line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accord with history and faithfully reflect the understanding of the Founding Fathers.’”
In thinking about originalism, there are several important questions that must be answered.
Is the historical record sufficiently clear and sufficiently relevant to be a basis for constitutional decisions today?
Initially, originalism was focused on the intent of the framers of a constitutional provision. Critics pointed to the difficulty of determining this intent because so many people were involved in the drafting and ratifying of a constitutional provision. Originalists developed a new approach, instead focusing on determining the original meaning of a provision at the time it was adopted. Interestingly, though, conservative justices still speak in terms of the framers’ intent, as Justice Gorsuch did in the Kennedy case. And given varying views and practices at the time a provision was adopted, nonoriginalists argue that it allows originalists to pick and choose their history to come to the result they prefer.
There also is the question of whether the history, even if it can be known, is relevant to today’s world. Does it make sense to ask whether high school football coaches in public schools could engage in public prayer in 1791? Does it make sense to look to the laws of 1791 or 1868 to ascertain whether there should be a right to abortion now because it did not exist as a safe medical procedure then?
What would be the implications of originalism for landmark cases advancing freedom and equality?
Until recently, the Supreme Court has been nonoriginalist throughout its history. What would be the fate of some of the most important precedents if originalism were wholeheartedly embraced? It would seem that Brown v. Board of Education (1954) was wrongly decided from an originalist perspective because the same Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools. Loving v. Virginia (1967), which declared unconstitutional laws prohibiting interracial marriage, cannot be justified under originalism because such laws were common in 1868 when the 14th Amendment was ratified and 16 states still had them in 1967. Griswold v. Connecticut (1965), which said that there is a constitutional right to purchase and use contraceptives, also was wrong under originalism.
Originalists might accept this and say that the appropriate course should have been to amend the Constitution to gain these results. Justice Thomas expressed this view in his concurring opinion in Dobbs by urging overruling Griswold and precedents protecting a right to engage in private consensual same-sex sexual activity and a right to same-sex marriage. Or originalists might try to define the framers’ intent in a more abstract and general way, but then originalism and nonoriginalism become indistinguishable.
Do conservatives follow originalism when it does not lead to the conservative results they want?
In evaluating originalism, an important question is how originalists treat situations where an originalist approach does not get to the result they want. For example, the Supreme Court will hear two cases in the October term that concern whether colleges and universities can continue to engage in affirmative action, using race as a factor in admissions decisions to enhance diversity. There is no dispute that the same Congress that ratified the 14th Amendment adopted many race conscious programs. In past affirmative action cases, originalist justices, like Antonin Scalia and Thomas, have strongly opposed affirmative action without acknowledging this history. Will the originalist justices follow the history in the upcoming term and uphold affirmative action?
Is originalism a desirable approach to constitutional interpretation?
This, of course, is the crucial question. Is it better to have a dead Constitution or a living one? Justice Scalia was fond of saying the Constitution is “dead, dead, dead.” He said originalists have a theory of constitutional interpretation and nonoriginalists don’t. Originalists say their theory constrains what justices can do. Nonoriginalists say it makes no sense to be governed today by the views and understandings of the agrarian, slave society of 1787. The Constitution, to be relevant, must be a living document.
Long ago, in McCulloch v. Maryland (1819), a case about federal powers, Chief Justice John Marshall wrote, “We must never forget that it is a constitution we are expounding … a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” Nonoriginalists say justices always have looked to a number of sources: the text, the framers’ intent, the original meaning, historical practice, precedent, and modern needs and circumstances. They argue that no theory constrains decision-making; originalists come to conservative conclusions and justify it in originalist rhetoric.
In 1987, Robert Bork was rejected for a seat on the Supreme Court because his originalist views were deemed unacceptable. He was impeccably qualified but still was denied confirmation by the largest margin in American history. But originalism has gained legitimacy and support over time. Justices Gorsuch and Barrett were confirmed by the Senate despite embracing originalism, as Bork had done decades earlier.
If Hillary Clinton had been elected president in 2016 and picked three justices, originalism would have been relegated to a fringe theory espoused by Justice Thomas and conservative law professors. None of the major cases last term—ending abortion rights, expanding gun rights, allowing prayer in public schools—would have come out the same way. But with three Trump justices joining the conservatives already on the court, originalism is ascendant and will be for years to come.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the forthcoming book Worse Than Nothing: The Dangerous Fallacy of Originalism. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.