UC Berkeley Law dean slams ‘scourge’ of ‘originalist’ reading of Constitution in LA Times op-ed

In an op-ed for the Los Angeles Times, the dean of the UC Berkeley School of Law, Erwin Chemerinsky, described the "originalist" interpretation of the U.S. Constitution by Supreme Court justices as a "scourge" which is in "ascendency" in the judicial branch.

Chemerinsky attributed the rise in this "scourge" to the conservative justices on the court who have a "cramped reading of history" and as such have done away with abortion rights, protected gun rights, etc.

The Berkeley Law dean opened his piece with an anecdote about a better time in American history when the "Senate resoundingly rejected the nomination of Judge Robert Bork for the Supreme Court because it found his originalist views unacceptable." Chemerinsky described Bork’s views, writing, "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."

Calling him "impeccably unqualified," the author claimed that Bork would have employed his interpretation of the U.S. Constitution to find "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."

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The author noted that Bork "was defeated by the largest margin of any Supreme Court nominee in history" because "his originalist philosophy was seen as nonsensical and dangerous." 

Directly smearing the idea of originalism itself, he stated, "It makes no sense to limit the Constitution’s broad language to what was intended in the agrarian, slave society of 1787." He added, "Originalism was rightly regarded as a radical approach to constitutional law that would upend decades of precedents in a myriad of areas."

Chemerinsky noted that originalism is spreading, thanks to the increase of conservative justices added to the Supreme Court in former President Trump’s term. "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," he stated.

The author mentioned several recent Supreme Court decisions allegedly made in error due to these originalist interpretations. "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."

Taking the case which struck down New York State limiting concealed-carry firearm permits, Chemerinsky wrote that the justices were referring to "the law that existed in 1791 when the 2nd Amendment was adopted and perhaps to 1868 when the 14th Amendment was ratified." 

He also noted how the justices ruled in favor of school coaches leading their teams in Christian prayer based on "the understanding of the Founding Fathers." His point in brandishing both examples was that justices are basing rulings on old world understandings.

"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," he declared. 

Chemerinsky also asserted that a strictly originalist reading of the Constitution would say that Brown v. Board of Education, the case the ended segregation in public school, was "wrongly decided." He further claimed an originalist view of Loving v. Virginia decision, which ruled bans on interracial marriage to be unconstitutional, would say that was "wrongly decided" as well.

"Moreover, the assumption of originalism is that there is an ‘original’ meaning for constitutional provisions that can be discovered," he continued. "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," the dean claimed, "is that originalists pick and choose from the historical record to support the conclusion they want."

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Calling the court’s commitment to originalism "frightening," Chemerinsky feared that the originalist view which ended Roe v. Wade could endanger many other rights we take for granted. "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," among others, he claimed.

The UC Berkeley concluded his op-ed, stating, "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."

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