". . . and having done all . . . stand firm." Eph. 6:13


Attacking Originalism: Liberalism’s Desperate Last Legal Stand

September 8, 2022

It can take hours to build a sandcastle. Your children create fantastic shapes using everything from plastic buckets to dixie cups. But however well-crafted and beautifully done, in the end, sandcastles don’t last. Wind, waves, or both reduce them back to the beach from which they came.

So with the liberal project of legislating through the federal courts, most especially the Supreme Court. The Left’s decades-long effort to build a judiciary that would provide them with their desired political outcomes is dissipating, much like a sand sculpture at the incoming tide.

The advent of a Supreme Court populated by jurists who believe the Constitution is not legal putty but a text with definite meanings has created angst, heartache, and deep anger among those on the Left. Perhaps the most vivid case in point is a new book by legal scholar Erwin Chemerinsky, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Chemerinsky, dean of the University of California-Berkeley law school, argues that “the Framers likely did not want their views to control constitutional interpretation.”

Chemerinsky provides a 240-some page jeremiad against the idea of originalism, defined by the Federalist Society as “the idea that the Constitution should be interpreted according to the meaning that was fixed at the time it was enacted.” Chemerinsky even claims that “Strong evidence supports the conclusion that those who wrote the Constitution preferred that their views not be controlling.”

This is quite novel. He speaks elsewhere of the “general” language of the Constitution, which is an extraordinary statement. The language employed by the drafters of the document that constitutes our republic was quite clear, so much so that “The Federalist Papers” are a brilliant and extensive commentary on each of its provisions. The idea that the Framers did not intend that their “views … be controlling” is an extraordinary statement. Their “views” are embedded in the objective meanings of the text they drafted. How can this be more obvious?

Chemerinsky tries to defend against this criticism in acknowledging that intent and meaning are different things. Yet, he says, “Even when the focus is on discovering original meaning rather than intent, the Framers’ intent is still relevant,” he charges. Well, sort of: I know my wife’s intent when we were married was to marry me. I believed she loved me. But even if at some point she stopped loving me (thanks be to God, after 41 years, she has not), we would still be married.

In other words, the meaning of any marriage ceremony, the “joining together” of a man and woman to create a new union and the legal validation of it, does not comprehend necessarily the intent of those uniting. Love, avarice, desperation, the desire for children, the hope for security, etc. are all possible intentions, some more noble than others. But they don’t change the objective legal meaning of marriage itself.

So with the Constitution. We have not only “The Federalist Papers” but the “Anti-Federalist Papers,” written by such influential persons as Patrick Henry and Richard Henry Lee. The “Debates in the Several State Conventions on the Adoption of the Federal Constitution” run to five volumes. We have Blackstone’s “Commentaries on the Laws of England” and, of course, a host of books by such influential political philosophers as John Locke and Baron Montesquieu. We know what the Constitution means in all its essentials.

Additionally, if the meaning of the text of the Constitution is not clear, why does it include a process for its own amendment? Why amend something whose meanings are inherently ambiguous — why not just reinterpret them according to the preferences du jour? And why include an amendment (the Tenth) stating, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”? In other words, the Constitution defines, specifically and clearly, what things are the duty of the federal government and what belongs to the states or people generally.

Chemerinsky notes that in “Federalist 37,” “Madison reminded his readers that the medium through which human beings communicate is necessarily ‘cloudy.’” He quotes Madison as writing, “No language is so copious as to supply words and phrases for every complex idea (and) the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered.” True enough. But in this same passage, Madison also says, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” Such “liquidations” (clarifications and definitions) are exactly what “The Federalist” was for.

As late as 1824, James Madison wrote his friend Henry Lee, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable … exercise of its powers.”

Sand is unstable. Seeing a prized sand creation slip into the sea can be disappointing. As the liberal legal establishment bemoans the return to original meaning jurisprudence, you have to wonder upon what new ground they propose to rebuild.

Rob Schwarzwalder is Senior Lecturer in Regent University's Honors College.