Tag Archives: Chemerinsky

Originalism

Definitions are important.

For example, I’m perfectly willing to say I believe in God–if God is defined as “the moral impulse.” I really do believe that most people (not Donald Trump, but most people) have an innate sense of fair play (of justice, if you will), and if we dub the moral guidance provided by that sense of justice as “God”– well then, I’m a believer. (If God is a white guy on a throne with a long white beard who watches to see whether I’m naughty or nice, ala Santa, not so much…)

In constitutional argumentation, originalism is a lot like God.

I mentioned in a prior post that I’ve been reading Erwin Chemerinsky’s We the People: a Progressive Reading of the Constitution for the Twenty-First Century. it’s a really great book, and I recommend it highly; it’s accessible, readable, and (seeing as how it’s from Erwin Chemerinsky) erudite.

Chemerinsky doesn’t have much use for originalism as defined by Scalia et al. I particularly enjoyed his reference to an oral argument in a case involving a California law prohibiting sale or rental of violent video games to minors. Scalia was pressing California’s attorney about whether the the law could be reconciled with the “original understanding” of the First Amendment. After a confusing back-and-forth, Justice Alito interrupted, saying “I think what Justice Scalia wants to know is what James Madison thought about video games.”

The reason I loved this anecdote is that it is so close to the way I introduce “original intent” in my classes of non-law-school undergraduate students. I ask them what James Madison thought about porn on the Internet. (These days, I’m just happy when the respondent knows who James Madison was…but that’s a subject for a different post.)

Obviously, Madison never contemplated either technology–that of video games or the Internet. But I would argue that’s not the end of the analysis, nor is it reason to declare the irrelevance of originalism properly defined.

James Madison may not have contemplated an Internet (and who knows what porn looked like in his day), but he did have firm convictions about the importance of free expression and the deleterious effects of government censorship. Original intent, properly understood, requires the courts to protect the principle that government ought not be able to decide which ideas may be communicated.

If, as Chemerinsky demonstrates, it is impossible to define original intent as the Scalia faction would do— as reliance on and limited to what was in the minds of the Founders at the time they drafted the Constitution– and if it is equally if not more unsatisfactory to say that the Constitution simply means what nine people in black robes say it means at any particular point in the nation’s history, then the only reasonable definition of originalism is protection of the principles and values that the Founders were intent upon protecting.

The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.

The principles and values that the Founders protected in the Constitution and the Bill of Rights are pretty clear, even if their application in many situations is less so. The only approach to Originalism that makes any sense is an approach that protects those values–an approach that serves as an anchor of continuity in a world where “facts on the ground” are always shifting and technology is constantly reshaping the issues with which courts must contend.

Does slapping a GPS device on a suspect’s car require a warrant? Is use of a new technology that lets police see whether you’re growing pot in your basement from across the street a search for purposes of the 4th Amendment? Do Congressional efforts to censor the Internet run afoul of the First Amendment?

What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about these and hundreds of similar questions?

We can only answer these questions and others like them in a consistent and principled way by considering the limits the Founders placed on government and the values those limits were intended to protect.

It’s the only workable Originalism.