Viewpoints

Originalism is bad for justice. And Brett Kavanaugh is a big believer

Originalism is a terrible approach to constitutional interpretation. The confirmation hearings on the nomination of Judge Brett Kavanaugh for the U.S. Supreme Court, which are to begin Sept. 4, will focus a great deal on his being an “originalist” in interpreting the Constitution.

 
Opinion

Originalism is the view that a constitutional provision means the same thing today as when it was adopted, and that its meaning can be changed only through a constitutional amendment. This approach to constitutional interpretation is attractive because there is a desire to think of Supreme Court decisions as being more than just a reflection of who is on the bench at a particular time.

But this is neither desirable nor possible. The original understanding of the Constitution is unknowable, and even if it could be known, it should not be binding today. Long ago, Chief Justice John Marshall reminded us that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.”

If constitutional interpretation must follow the specific intentions of the framers, the results often will be unacceptable, if not absurd. The world of today is so radically different from that of 1787, when the Constitution was drafted, or 1791, when the Bill of Rights was ratified, or 1868, when the Fourteenth Amendment guaranteeing equal protection under the law was adopted.

For example, Article II refers to the president and vice president as “he.” The framers undoubtedly intended that those holding these offices would be men. From an originalist philosophy, it would be unconstitutional to elect a woman as president or vice President until the document is amended.

The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under an originalist philosophy, Brown v. Board of Education was wrongly decided in 1954 and laws mandating segregation were constitutional.

The Constitution is, and always has been, regarded as a living document. Even the power of judicial review – the authority of courts to review the constitutionality of executive and legislative acts – is mentioned nowhere in the text of the Constitution. It is at best unclear whether it was intended by the Constitution’s drafters.

Indeed, if a majority of the Supreme Court were to adopt Kavanaugh’s originalist philosophy, there would be a radical change in constitutional law. No longer would the Bill of Rights apply to state and local governments. No longer would there be protection of rights not mentioned in the text of the Constitution, such as the right to travel, freedom of association and the right to privacy.

This would mean the end of constitutional protection for liberties such as 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 to abortion, the right to refuse medical care and the right to engage in private consensual homosexual activity.

No longer would women or gays and lesbians be protected from discrimination under the equal protection clause because the drafters of the Fourteenth Amendment did not intend to safeguard them. But what is most striking is that even conservatives, including the late Justice Antonin Scalia and current Justice Clarence Thomas, abandon originalism when it does not serve their purpose. There is nothing whatsoever to indicate that those who drafted and ratified the First Amendment meant to protect the right of corporations to spend unlimited amounts of money in election campaigns. But that, of course, did not keep the five conservative justices from finding such a right in Citizens United v. Federal Election Commission in 2010.

Nor can originalism eliminate the need for justices to make value judgments that come down to their own ideology and life experiences. Cases involving constitutional rights and discrimination inevitably involve balancing of competing interests, which inevitably depends on the views of the justices.

In 1987, the U.S. Senate overwhelmingly rejected Robert Bork for a seat on the Supreme Court entirely because of his originalist approach to constitutional law. He was deemed unacceptable because of his views that there was no constitutional protection for privacy, that only political speech is protected by the First Amendment and that the equal protection clause does not apply to discrimination based on sex.

“Originalism” might sound innocuous, but it is really just a guise for conservative justices taking away long-standing rights.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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