Legal practitioners litigating contentious cases, especially Constitutional ones, must grapple with the current ascendance of the judicial philosophy of originalism, the belief that “the meaning of a constitutional provision is fixed when it is adopted and can be changed only by amendment.”¹ Four current U.S. Supreme Court Justices describe themselves (perhaps to varying degrees) as originalist.² In announcing two recent appointments to the Tennessee Supreme Court, Gov. Bill Lee stressed the originalist bona fides of his nominees. Tapping Justice Sarah K. Campbell for the court, Lee promised that “her commitment to an originalist interpretation of the state and federal constitutions will serve Tennesseans well.”³ And in choosing Justice Mary L. Wagner, who began service on Aug. 31, Lee touted one of originalism’s central claims — so-called “judicial restraint” — and praised Wagner for adherence to this precept: “[H]er understanding and respect for the rule of law and commitment to the conservative principles of judicial restraint make her well-suited for the state’s highest court.” ⁴

It is against this backdrop that I recently read professor Erwin Chemerinsky’s polemic against originalism, Worse Than Nothing: The Dangerous Fallacy of Originalism. As the title suggests, the book mounts an incendiary attack against the entire theory of originalism — an attack led by an admitted proponent of originalism’s theoretical opposite — “living Constitutionalism,” in which “the meaning of the Constitution changes over time as it is interpreted in specific cases.”⁵ It would be easy, for this reason, to dismiss the book as simply a biased work from a dissenting partisan. It would be easy — but it would be a mistake, because Worse Than Nothing raises some essential questions about the key claims of originalism that, at least in my view, proponents of originalism would do well to answer, if for no other reason than to shore up the intellectual integrity of their movement. To prove, that is, that originalism is a serious intellectual commitment, rather than, as Chemerinsky charges, “a rhetorical shield that conservatives use to pretend they are not making value judgments, when that is exactly what they are doing.”⁶

The title of Worse Than Nothing is itself a polemical response to a major premise of originalism, one popularized by the late Justice Antonin Scalia, a leading figure in the originalist movement. Scalia once observed that “as a practical matter, there is no alternative to originalism but standardless judicial constitution-making.”⁷ Originalism, in this view, is better than “nothing.” But is it? This is the animating question of Chemerinsky’s work. In setting about answering it, Chemerinsky identifies five key problems with the theory of originalism, and these five problems form the focus of the major chapters of the book. They are 1) the epistemological problem, 2) the incoherence problem, 3) the abhorrence problem, 4) the modernity problem and 5) the hypocrisy problem.

The epistemological problem, as Chemerinsky describes it, arises from the “multiplicity of sources” that “make it a fiction to say that there was one original meaning to any constitutional provision.”⁸ Faced with competing originalist sources of equal validity but yielding opposite legal outcomes, even a committed “originalist” judge must essentially choose one result over the other, even though both results are theoretically justified under originalism’s own terms. Here Chemerinsky chooses, among others, the example of District of Columbia v. Heller, in which the Supreme Court divorced the 2nd Amendment right to bear arms from the militia clause.⁹ Scalia’s majority opinion, purportedly “originalist,” concluded that the text concerning service in a militia was a “prefatory clause,”9 rather than a qualifying clause, that did not restrict the right to bear arms.¹⁰ But Justice John Paul Stevens’ dissent mustered (pardon the expression) several originalist sources of its own to reach the opposite conclusion — that militia service was the essential historical context for the Second Amendment right. As UCLA law professor Adam Winkler recounts in Gunfight: The Battle Over the Right to Bear Arms in America, an excellent deep dive on the Heller case, even the leading conservative legal figure Judge Richard Posner believed that Stevens’ dissent “had the better argument.”¹¹ More surprisingly, the self-avowed originalist law professor Nelson Lund (of the Antonin Scalia Law School), speaking at the annual convention of the Federalist Society in 2008, lambasted Scalia’s opinion in Heller, arguing: “the Court’s performance is so transparently defective that it’s quite possible that this decision will become Exhibit A when people seek to discredit originalism as an interpretive method.”¹² (Chemerinsky does, in fact, mention Heller as the first case in his first major chapter attacking originalism—so credit may be due to professor Lund’s powers of prediction.)

Moving on from the problem of selecting among competing original source materials, Chemerinsky identifies the “incoherence problem,” by which he means: “there is no indication that the original meaning of the Constitution was to create judicial review, or if it did, that it was meant to create originalist judicial review.”¹³ In fact, given the Constitution’s complete silence on the subject, “there is a compelling argument that a commitment to originalism requires abandoning judicial review altogether.”¹⁴ In this chapter we see our first provocative normative question. “Originalist judicial review is just as incompatible with majority rule as is non-originalism,” so then: “how much more undemocratic is it if society is governed by past majorities who cannot be overruled and are never replaced?”¹⁵

This latter question naturally anticipates Chemerinsky’s next section, “the abhorrence problem,” which is that originalism produces abominable results completely out of step with the prevailing norms of our society. Brown v. Board of Education, perhaps the historical high-water mark for the Supreme Court, is the quintessential example here.¹⁶ Racially-segregated public schools were not believed to violate the Equal Protection Clause of the 14th Amendment in any “original” sense — in fact, “the same Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools.”¹⁷ A true commitment to originalism would mean upholding Plessy v. Ferguson. Interestingly, even the usually well-lettered Justice Scalia offered little more than a cliché to sidestep this problem. Asked by a student how one can reconcile Brown with originalism, Scalia responded: “Even a broken clock gets it right twice a day. Next question.”¹⁸

While I was familiar with Brown as a key example of originalism’s “abhorrence” problem, I was less aware of cases involving discrimination against women. In 1872, four years after ratification, the Supreme Court upheld an Illinois law that prohibited women from being licensed to practice law.¹⁹ (To the originalist, it is doubtful that the 14th Amendment prohibits sex discrimination at all.) To “solve” this abhorrence problem, some originalists have focused on the general “goals” of Constitutional provisions rather than “specific original meaning.”²⁰ Under this view, Brown can be reconciled with the “goal” of racial equality, despite the weight of the historical record to the contrary. But here Chemerinsky astutely points out that this approach sounds a lot like an argument for a Living Constitution and essentially gives up the game: “either [originalism] leads to results that most Americans would find totally unacceptable, or else it becomes non-originalism.”²¹

Closely related to the problem of abhorrence, Chemerinsky identifies the challenge of “modernity,” unprecedented societal and technological challenges that were simply unimaginable to previous generations. I was surprised to learn that the Supreme Court held in 1915 that movies and films were not protected by the 1st Amendment.²² It was only in 1952, in Burtsyn v. Wilson, that the court reversed course and held movies are a form of protected speech under the 1st Amendment.²³ But from a truly originalist perspective, that conclusion is questionable. A similar problem arises in the 4th Amendment context. Historically, a physical trespass was required to state a 4th Amendment violation.²⁴ Under this view, the police may wiretap your phone or snoop on your cellphone activities without violating the 4th Amendment. (This apparently remains the view of Thomas and Gorsuch.)²⁵

Finally, Chemerinsky identifies the hypocrisy problem, which is simply that conservative judges will ignore originalism altogether to reach preferred ideological outcomes. Shelby County v. Holder is a salient example.²⁶ In that case, the conservative majority struck down a key piece of the Voting Rights Act. But, surprisingly, “the Court never made it clear which constitutional provision or principle it thought section 4(B) of the Voting Rights Act violated.”²⁷ Instead, the court appears to have invented a principle of “equal state sovereignty,” but this notion cannot be squared with the historical fact that the “Congress that ratified the 14th and 15th Amendments imposed Reconstruction on the South, literally creating military rule over former rebel states.”²⁸ Shelby County thus seems quite a bit like the kind of non-originalism proponents of originalism are purportedly against.

If I have a criticism of Worse Than Nothing, it is that it doesn’t offer much in the way of usefulness or techniques that a legal practitioner can utilize to rebut originalist arguments or methods for swaying originalist judges. Chemerinsky’s attack is academic and theoretical — it is not prescriptive. Still, it is a worthy book, especially, in my view, for originalism’s own adherents to consider. |||

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CHRISTOPHER W. SMITH is a lawyer with DRS Law Personal Injury Lawyers in Nashville. His practices centers on civil rights and personal injury matters. Smith is a current board member of the Tennessee Trial Lawyers Association.

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NOTES

1. Chemerinsky 24.

2. They are Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

3. Gov. Lee Names Tennessee Supreme Court, Court of Criminal Appeals Appointees, www.tn.gov/governor/news/2022/1/12/gov--lee-names-tennessee-supreme-court--court-of-criminal-appeals-appointees.html, last visited July 1, 2024.

4. Gov. Lee Names Tennessee Supreme Court Appointee, www.tn.gov/governor/news/2024/2/1/gov--lee-names-tennessee-supreme-court-appointee.html.

5. Chemerinsky 26.

6. Chemerinsky 212.

7. Chemerinsky 51, n. 66.

8. Chemerinsky 71.

8. Chemerinsky 65, citing Heller, 554 U.S. 570 (2008).

10. Heller, at 576-77.

11. Winkler 283.

12. “Civil Rights: The Heller Case, Minutes from a Convention of the Federalist Society.” Lund’s full comments are available at www.nyujll.com/volume-4/blog-post-title-four-b9f8m-2k8fm-2483j, last visited July 1, 2024.

14. Chemerinsky 84.

14. Id. 85.

15. Id. 87, emphasis in original.

16. 347 U.S. 483 (1954).

17. Chemerinsky 104.

18. Id. 105.

19. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872).

20. Chemerinsky 112.

21. Id.

22. Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230, 244 (1915).

23. 343 U.S., 495, 499-502 (1952).

24. Chemerinsky 126.

25. Chemerinsky 129.

26. 133 S.Ct. 2612 (2013).

27. Chemerinsky 154.

28. Id.