The Volokh Conspiracy

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Volokh Conspiracy

Not an April Fools' Day post: Another contradictory attack on originalism


Now, just a year after contending that refusing an up-or-down vote on a Supreme Court nominee is unconstitutional (here, here, and as reported here), comes Dean Erwin Chemerinsky to urge that Democrats should filibuster Gorsuch's nomination. That is, having once said that Republicans must vote on a Supreme Court nominee, he now favors Democrats preventing a vote. But why? Because Judge Gorsuch is an originalist (like the justice he would replace).

So, does Dean Chemerinsky have a coherent argument against originalism? Judge for yourself:

The original understanding of the Constitution is unknowable and even if it could be known, should not be binding today. (emphasis added).

Now here is the very next sentence:

Under an originalist philosophy, it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as "he" and the framers unquestionably intended that they would be male. Under originalism, Brown v. Board of Education was wrongly decided because the same Congress that ratified [sic] the Fourteenth Amendment also voted to segregate the District of Columbia public schools.

So his position is that original meaning is both impossible to identify, and would lead to horrible results. Wait, if originalism is "unknowable," how does Dean Chemerinsky know it would lead to these results? And no, this is not an April Fools' Day caricature of a critic of originalism. He really did write this. With enemies of originalism like these, who needs friends?

And, while we are on the subject of filibusters, in a 1997 Stanford Law Review article, Dean Chemerinsky also wrote this about the filibuster:

The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it. (p. 184)

While he did not contend that the filibuster was unconstitutional, he did argue that it was unconstitutional to require a supermajority to abolish it.

[E]ntrenchment of the filibuster violates a fundamental constitutional principle: One legislature cannot bind subsequent legislatures. (p. 247.) . . . . Therefore, Senate Rule XXII is unconstitutional in requiring a two-thirds vote in order to change the Senate's rules. Declaring this rule unconstitutional would mean that a majority of the Senate could abolish or reform the filibuster. Ideally, the Senate would recognize this violation and revise its own rules to eliminate the requirement for a supermajority. (p. 253.)

Original meaning wouldn't lead to the results Professor Chemerinsky describes, by the way. The original meaning of "he" in this context referred to both males and females. (See also here, here, here, and here.) Relatedly, there is no question that both the words "citizens" and "persons" in the 14th Amendment included women. I discuss how, despite this meaning, the Supreme Court was able to sustain a state law discriminating against women (over a dissent by Chief Justice Chase) in Our Republican Constitution (115-19, 146-49).

Nor did the 39th Congress "ratify" the 14th Amendment or racially segregate DC schools, which were already segregated. Indeed, after the 14th Amendment was ratified by the states, the Republican majority of both houses voted in favor of a civil rights measure that would have made state school segregation illegal. That provision was not included in the Civil Rights Act of 1875 (which the Supreme Court eventually invalidated) because of supermajority procedural requirements in both the House and the Senate-the sort of supermajority requirement Dean Chemerinsky is now urging Senate Democrats to employ.

Stanford law professor Michael McConnell laid out the facts here over 20 years ago in 1995 and, in his critical reply, Harvard legal historian Michael Klarman does not dispute any of these facts. Instead, he offers methodological arguments about originalism. Revealingly, Klarman's response is entitled Brown, Originalism, and Constitutional Theory (I cannot find a free link but you can read the synopsis). McConnell responds persuasively to Klarman here; and another reply by McConnell to a different critique is also interesting.) You can read the exchange for yourself and decide who has the better of the factual dispute.

Of course, these arguments about original meaning assume one sincerely cares about how the original meaning of the original Constitution and of the 14th Amendment bears on the rights of women and on school segregation rather than caring about refuting originalism. It is almost perverse how critics of originalism refuse to accept that originalism bolsters the correctness of their own positions on these issues.

For some reason, these critics of originalism simply won't take "Yes" for an answer.

[UPDATE: Some supporting links added]