In The Atlantic, Erwin Chemerinsky: Even the Founders Didn’t Believe in Originalism.  He principally argues points, both of which have been refuted many times, but it’s probably worth going through them again.  A third, which he introduces only at the end, is somewhat interesting.

First, he says that the Constitution’s original meaning does not convey a power of judicial review:

Nothing in Article III explicitly authorizes courts to review the constitutionality of laws and executive actions. Article III, Section 2, defines the types of “cases” and “controversies” the federal courts may hear, but it says nothing whatsoever about a power to declare laws or executive acts unconstitutional. Nor is this power inherent in the authority granted to courts by Article III. Even if federal courts could not declare laws unconstitutional, they still could exercise their constitutional authority to decide the cases and controversies that come before them. Federal courts could apply federal law, decide diversity cases, and resolve all of the other matters enumerated in Article III, Section 2 without being allowed to invalidate a statute or executive action on constitutional grounds. No such power existed in English courts. One would think that if the Framers meant for the Constitution to deviate from English law and practice in such a fundamental way, they would have been explicit about it.

This is wrong on two counts.  As to the text, Article III gives federal courts jurisdiction over cases “arising under this Constitution.”  What are cases arising under the Constitution? The Constitution constrains governmental action; necessarily, a case arising under the Constitution is a claim that some governmental action violates the Constitution and thus should not be permitted by the courts.  I don’t see what else it could be.  (The above-quoted discussion is all Dean Chemerinsky says about Article III; he does not mention the courts’ jurisdiction over constitutional cases).

Moreover, Article VI makes “this Constitution … the supreme Law of the Land” with judges “bound thereby”, and requires that “judicial Officers … shall be bound by Oath or Affirmation, to support this Constitution.”  Coupled with Article III’s grant of constitutional jurisdiction, this seems plainly to direct courts to make independent judgments of the constitutionality of governmental action.

As to the deviation from English law, the central point of the written Constitution was to deviate from English law, which did not have a single source of constitutional rights and structure that could be enforced by judges.  (As an aside, English judges had power to invalidate executive action on constitutional grounds; they did not have power to constrain parliament on constitutional grounds, but again the Constitution’s central project was to reject the unlimited sovereignty of Parliament in favor of a limited legislative power in Congress).

Chemerinsky continues:

Nor do the records of the Constitutional Convention reveal an agreed-upon desire to give the Supreme Court the power to strike down laws or executive actions. … Alexander Hamilton argued for this power in “Federalist No. 78,” so perhaps it was assumed that judicial review would exist. Some state courts did exercise that power. But this is a flimsy basis for such a consequential authority, which has been central to American constitutional law and government since its creation by Marbury v. Madison in 1803.

This does not seem like a “flimsy basis” to me, especially added to the textual evidence noted above.  If a pre-Convention understanding of judicial power in the states was that it included the power to invalidate governmental action under the written state constitutions, and if the leading (and uncontradicted) post-Convention explanation of the judicial power in the Constitution was that it included the power to invalidate governmental action under the written federal Constitution, that seems like strong evidence to me that the text means what it appears to say in giving courts constitutional jurisdiction.

Chemerinsky then shifts to a second argument:

Assuming that originalists can surmount this problem and somehow make a convincing case that judicial review is justified under the original meaning of the Constitution, they run right into another problem. … Originalism requires that [interpreters] ask: What was the original understanding of how the Constitution should be interpreted?

In his 1985 article “The Original Understanding of Original Intent,” the law professor H. Jefferson Powell laid out strong evidence that the Framers of the Constitution never meant their own intent to be controlling. At the Philadelphia Convention, the Framers explicitly indicated that they did not want their specific intentions to control the Constitution’s interpretation. Years later, James Madison maintained that the Philadelphia proceedings “can have no authoritative character” and that the document coming out of it “was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through [the state] Conventions” that ratified the Constitution in 1787–90. The delegates also took steps to shield convention records from public view. They met under a rule of secrecy and preserved the records’ confidentiality when they adjourned by depositing the documents with George Washington. The records remained in “confidential limbo” until 1818, when John Quincy Adams organized and published them.

Those looking for evidence of original meaning in the Philadelphia debates often use Madison’s notes. These are apparently the most comprehensive of several unofficial reports, yet they covered no more than 10 percent of the proceedings. Madison himself treated his notes as private property because he thought that the proceedings “could never be regarded as the oracular guide in expounding the Constitution.” The late Yale professor Boris Bittker argued that originalists have failed to explain why the Framers’ intent should be reconstructed from a private document that Madison intentionally withheld.

This argument has been answered many times by originalist scholars, and indeed in part by Professor Powell himself.  Modern originalism does not see the “Framers’ intent” as the touchstone of constitutional meaning.  Rather, the meaning comes from the text itself, understood in the context in which it was adopted.  Public statements of the framers, along with those of other members of the founding generation, can be helpful in determining that textual meaning.  But these statements (much less the Framers’ private intentions) are not “controlling”.  The text is controlling.  Dean Chemerinsky is arguing against a form of originalism that hasn’t been widespread since the 1980s.

Specifically as to Madison’s notes, their limitations are widely recognized and they are not commonly treated as authoritative as to meaning by originalist scholars.  (Justice Scalia did not cite the Convention records often, for example.)  The notes can be helpful in understanding why a particular clause took the form it did, or how people of the founding generation used language, and so can be a sometimes useful tool in determining textual meaning, but they are not (to most originalists) more than that.

Chemerinsky ultimately acknowledges that he’s arguing against an old form of originalism, and in response advances a third argument:

Originalists might answer that I have ignored how originalism has changed over time. The legal philosophy initially focused on the Framers’ intent, and their rejection of originalism would be relevant under that approach. Now, however, most originalists focus on determining the original meaning of a constitutional provision rather than the specific intent of the Framers. Therefore, they would say, my argument about the drafters’ theory of interpretation is misguided and irrelevant.  [Ed.:  Yep.]

Still, this does not solve the originalists’ incoherence problem. Originalism would be justified under its own terms only if there was a basis for concluding that the original understanding of Article III was for judicial review to follow the original meaning of the Constitution. No support exists for such an assertion.

The original meaning of the Constitution, if it included judicial review at all, did not embrace originalism as the method for interpreting the document. Originalism then self-destructs; to follow originalism requires abandoning it.

Though underdeveloped, this raises an interesting point.  Does originalism’s coherence depend on proof that the the Constitution’s original meaning contains a direction to use the original meaning?

Originalists might well respond that the Constitution’s original meaning does have such a direction.  Dean Chemerinsky dismisses this idea without much discussion, but a number of originalist scholars (including co-bloggers Mike Rappaport and Chris Green) have made versions of the argument.  And indeed, it seems implausible that the Framers would have spent many un-air-conditioned months in Philadelphia in the summer developing a fairly detailed plan of government on the background assumption that future judges could say that their language meant whatever the judges thought it should.  Rather, when one uses language, especially legal language, the ordinary assumption (absent contrary indications) is that it contains fixed directions — otherwise, what’s the point?

But the more interesting question is whether originalists are bound to make this argument to avoid “incoherence” and “self-destruct[ion].”  I think perhaps not.  Why could one not say (a) I’m not sure how the Framers expected the text to be interpreted, but (b) for normative reasons, principally rule of law values such as neutrality, stability and constraint, I think the best course would be to use the text’s original meaning, as opposed to a meaning to be invented by modern judges?

RELATED:  The Atlantic article notes that it is excerpted from Dean Chemerinsky’s new book, Worse Than Nothing: The Dangerous Fallacy of Originalism (Yale University Press 2022).  Adam White reviews the book in the Wall Street Journal (somewhat unfavorably) here.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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