by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. This post is part of our 2013 Constitution Day symposium.
What are we celebrating on September 17, the 226th anniversary of the completion of the Constitutional Convention in Philadelphia in 1787? To be sure, we are celebrating a document that has facilitated democratic rule for over 200 years. We are celebrating a document that has allowed society, throughout American history, to debate many of its most controversial issues in legal terms. In other words, we are celebrating not just the document itself, but how it has been interpreted and implemented over the course of American history.
For several decades, conservatives have espoused originalism as a theory of constitutional interpretation. This is the view that the meaning of a constitutional provision is limited to its original intent. Originalism is the idea that the meaning of a constitutional provision is fixed when it is adopted and can change only by constitutional interpretation. In other words, originalists give no consideration to how the Constitution has been interpreted and implemented over the course of American history. In this way, they ignore what we really are celebrating about the Constitution.
Originalism does not reflect what the Supreme Court ever has done in interpreting the Constitution. The Court always has looked at the text and the underlying purpose and the original intent and traditions and precedents and contemporary social needs. Even the justices who most advocate originalism abandon it when it does not serve their purposes. Justices Scalia and Thomas, for example, are adamantly opposed to affirmative action and simply choose to ignore that the original intent of the equal protection clause was to allow race-conscious programs to benefit minorities. The Congress that ratified the Fourteenth Amendment, however, adopted many such efforts.
There is an obvious reason why originalism never has – and hopefully never will – be followed by a majority of the Court: it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified). Simple examples illustrate this. The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.
The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Education was wrongly decided.
Under originalism, the Bill of Rights should not be applied to the states. It is hard to imagine that a state could try, and even execute a person, without counsel. Without the application of the First Amendment to the states, a state could adopt an official religion and enforce it as it wished.
There are many other problems with originalism as a theory. It assumes that there is an original meaning that exists and just needs to be discovered. Even James Madison and Alexander Hamilton disagreed on so many issues as to make it hard to see their being an original intent, to say nothing of the views of all who participated in the drafting and ratification of constitutional provisions. Also, there is no indication that the framers wished originalism to be followed and many reason to believe that they did not.
These criticisms of originalism are not new. Yet amazingly originalism survives as a reputable theory of constitutional interpretation.
As we celebrate the Constitution on September 17, we should remember that we are doing more than honoring the words on parchment in the National Archives or the intent of the framers who drafted them. We are celebrating all that the Constitution has meant and done for society for two and a quarter centuries. We are celebrating a living document that in the words of John Marshall endures because it is adapted to the ever changing world in which we live.
[image via Wikimedia Commons]