Earlier this month, Vanderbilt Law continued its Respectfully Dissent series —which brings together legal experts to debate pressing issues in today’s legal climate — with a debate entitled ”Is Originalism Really Worse Than Nothing?”
The event featured highly respected scholars Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law at UC Berkeley Law, and Brian T. Fitzpatrick, Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School.
Chemerinsky’s Opening Statement
Chemerinsky made three major points.
First, he argued that originalism is an undesirable way of interpreting the constitution. He pointed out that landmark cases — including Brown v. Board of Education (1954), Loving v. Virginia (1967), Obergefell v. Hodges (2015), and Griswold v. Connecticut (1965)— which gave minorities rights would be illegitimate under originalism. He went on to assert that originalism is inconsistent with the framers’ intention for the Constitution to be a living document that evolves with the nation. Finally, he contended that originalism offers a false promise of judicial constraint.
“The primary argument that’s made for originalism is that we need to constrain unelected judges in a democratic society, and originalists profess they do this, but originalism doesn’t do that,” Chemerinsky said. “It doesn’t do that because it falsely assumes that there is a historical record to be discovered that provides answers.”
Fitzpatrick’s Opening Statement
Responding to Chemerinsky’s claims and articulating an argument for originalism, Fitzpatrick argued that originalism is a method that can constrain judges and prevent tyranny by nine unelected people (the Supreme Court). He pointed out how justices make decisions daily that go against their personal views but align with the framers’ intent for the Constitution and referenced his time clerking for Justice Antonin Scalia as an example.
“Justice Scalia would have loved to invalidate California’s abortion laws and New York’s abortion laws on the grounds that they were unconstitutional,” Fitzpatrick said. “But he did not agree with that argument; he said that in 1868, when the Fourteenth Amendment was adopted, there were some states that allowed women to get abortions… case closed for an originalist.”
Instead of judges making or invalidating laws based on their personal preferences, Fitzpatrick emphasized the importance of the legislative process in resolving these issues.
“When our society is debating whether things are good or bad, the resolution of that debate should be the democratic process, unless the Constitution says otherwise,” Fitzpatrick said.
Rebuttals
Throughout several rebuttal rounds, Chemerinsky and Fitzpatrick addressed each other’s statements while strengthening their own arguments. Chemerinsky emphasized how he believes judicial review is, at its core, protecting Americans from authoritarian rule, and that amending the Constitution will not do that.
“Amending the Constitution is enormously difficult,” Chemerinsky stated. “There’s something more fundamentally wrong with the fact that a minority in society should need, for protection of its rights, a supermajority.”
Chemerinsky also argued that originalism doesn’t restrain judges, because they can choose the level of obstruction.
“I [can] give you many examples to show you conservatives don’t really follow originalism when it doesn’t get the results they want to follow,” Chemerinsky said. “Originalism was created by conservatives trying to get the results they want.”
Fitzpatrick argued that originalism creates a more democratic process that will, over time, come to the right conclusion.
“I’m willing to say that I trust the democratic process over time to get the right answers,” Fitzpatrick said. “We shouldn’t short-circuit that process and prevent people from learning and prevent the evolution of good ideas by constitutional-izing everything [just] because at any one moment in time, nine people, or five of nine people, think that something should be a certain way.”
The room was then opened for questions. The talk concluded with moderator Rebecca Haw Allensworth posing a question about why originalism matters in this moment of history.
Fitzpatrick argued that the future of the country should not be dictated solely by Supreme Court justices. “We can change people’s minds. We should decide when society evolves and when society changes,” he said.
“It doesn’t appear that Congress is going to provide a check on that,” Chemerinsky countered. “The only check that we’re going to have is the unelected judges in the lower courts and the Supreme Court. It’s the only thing at this moment to save our democracy.”
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