Berkeley Talks: Law professors debate originalism

(Music: “Silver Lanyard” by Blue Dot Sessions)

Anne Brice (intro): This is Berkeley Talks, a UC Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at Berkeley. You can follow Berkeley Talks wherever you listen to your podcasts. We’re also on YouTube @BerkeleyNews. New episodes come out every other Friday.

Also, we have another show, Berkeley Voices. This season on the podcast, we’re exploring the theme of transformation. In eight episodes, we’re looking at how transformation — of ideas, of research, of perspective — shows up in the work that happens every day at Berkeley. You can find all of our podcast episodes on UC Berkeley News at news.berkeley.edu/podcasts.

(Music fades out)

Erwin Chemerinsky: Good afternoon. My name is Erwin Chemerinsky, and I have the great pleasure of being the dean of Berkeley Law. I want to welcome you to the first Thomas David and Judith Swope Clark Program on Constitutional Interpretation.

Tom Clark is a graduate of both Berkeley Undergraduate and Berkeley Law. He’s given us a wonderful gift to create the Thomas David and Judith Swope Clark Chair in Constitutional Law. And as part of what he’s asked for in this gift is that each year there’d be a program on constitutional interpretation. I’d like to recognize Tom, and thank him for his tremendous generous support. If you don’t mind rising so we can thank you.

His generous gift has created a Chair for Professor. Amanda Tyler is the first chair holder. And it also provides for a program each year that we’ll do on constitutional interpretation. And this is the first of those programs, and I’m thrilled that Brian Fitzpatrick has come to us from Vanderbilt Law School to be part of this program.

Brian is one of the leading experts in the country in civil procedure and constitutional law. He went to Notre Dame for undergraduate. He graduated from Harvard Law School. He clerked for Judge O’Scannlain on the 9th Circuit, then for Justice Scalia on the Supreme Court. He practiced, and he’s been a member of the Vanderbilt faculty since 2007. He’s an author of so many articles and influential books, including the Conservative Case for Class Actions.

And so, we’ve decided that the format for this debate is going to be that each us will talk for 10 minutes and lay out our position. We’ll then each respond to one another for five minutes, respond again for five minutes, and then if we stay on schedule, that’ll leave us 15, 20 minutes for questions. To show you our extensive advanced planning, as we were standing in the hall, I said to Brian, “Do you want to go first or second?” And he said second, so that means that I get to go first.

With that, we can start.

Long ago, Chief Justice John Marshall in McCulloch v. Maryland said, “We must never forget that it’s a constitution we’re expounding, a constitution we adapt and endure for ages to come.” Until the 1980s, no justice on the Supreme Court professed a belief in originalism. Original is the view that the meaning of a constitutional provision is fixed when it’s adopted, and can change only by amendment.

Original was created as a philosophy in the 1960s and ’70s, as a way for conservatives to criticize the liberal Warren Court, and try to have a theory of constitutional interpretation that would lead to conservative results. What I want to try to convince you of this afternoon is that originalism is a terrible approach to constitutional interpretation. I will make several points.

The first is that originalism leads to undesirable and unacceptable results in society. Let me give you examples. Brown v. Board of Education, Loving v. Virginia, Obergefell v. Hodges, Griswold v. Connecticut, the protection of women from discrimination under equal protection. None of these could be justified from an originalist perspective.

Take Brown v. Board of Education, the same Congress that ratified the 14th Amendment voted to segregate the District of Columbia Public Schools. There’s not an iota of evidence that Congress meant to outlaw racial segregation. Loving v. Virginia, at the time the 14th Amendment was ratified, almost every state had a law prohibiting interracial marriage.

It might surprise you to know that California had a law prohibiting interracial marriage until 1948. When loving was decided in 1967, 16 states still had laws prohibiting interracial marriage. Obergefell v. Hodges, it wasn’t until 2015 that the Supreme Court finally recognized that gay and lesbian individuals had a right to equal dignity and a right to marry. It couldn’t be justified from an originalist perspective.

Griswold v. Connecticut, the Supreme Court said there’s a right to privacy, safeguarded under the Constitution. It includes the right to purchase and use contraceptives. The protection of women from discrimination. In 1873, in the Slaughterhouse Cases, five years after the 14th Amendment was adopted, the Supreme Court said it was unthinkable that equal protection applied to anything other than race discrimination. None other than Justice Scalia said, “That equal protection doesn’t apply to stop sex discrimination, because that wasn’t the Framer’s intent.”

Any theory should be justified by what it means in practice. A theory of constitutional law that makes Brown and Loving, Obergefell, Griswold, the protection of women from discrimination unacceptable is one that we should reject. It would make our Constitution, it’d make our society much worse.

I would make a second major argument, and that’s that originalism is unworkable as a theory. There are many reasons of … part of it is, there isn’t an original intent that there to be discovered. There wasn’t agreement among those at the Constitutional Convention, let alone those at the state ratifying conventions, is the most issues.

There isn’t an original public meaning for most issues that’s there to be discovered. I’m teaching constitutional law this semester, and I’d like to point out to my students the places where Hamilton and Madison disagreed. To pick one, which is quite important now, Hamilton and Madison strongly disagreed about where the president could exercise inherent powers.

To pick another, Hamilton and Madison disagreed as to the scope of Congress’s spending power. These are just a couple of examples. Originalism falsely assumes that there was an original intent, an original meaning, and it doesn’t exist. There’s another workability problem. Originalism falsely assumes that because something didn’t exist when the constitutional version was adopted, it was meant to be prohibited.

In 2022, in New York State Rifle & Pistol Association v. Bruen, Chief Justice Thomas, writing for the court said that, “The meaning of the Second Amendment is limited to what history and tradition support.” Justice Barrett, in a concurring opinion said, “We haven’t decided whether that’s 1791 or 1868.” But implicit in both their opinion’s idea, that if there wasn’t a particular kind of regulation of guns at the time The Second was adopted, it is therefore illegitimate now.

Beyond all the other problems with that, why is it that just because it wasn’t done then, we should assume that those who adopted the amendment meant to prohibit it? But maybe the largest workability problem with regard to originalism is that the world today is so vastly different than it was in 1787. It makes no sense to be governed just by what they thought at that time.

Let me give you examples. On Jan. 17, the Supreme Court decided whether or not a federal law prohibiting TikTok from operating was constitutional. I challenge anyone to find a way to decide what the Framers thought in terms of whether TikTok could be operating because it’s owned by a Chinese company.

Or another example. In June 2022, the court decided another case, and this was Kennedy v. Bremerton School District. The issue was whether it violated the Constitution to have a high school football coach pray on the field after games, or whether he had a right under the First Amendment to do so. Justice Gorsuch, writing for the court said, “We determine what violates the established clause by looking at the views of the Founding Fathers.”

So what did the Founding Fathers think about high school football coaches going on the field to pray after games? Just to ask that question shows the absurdity of it. Or take one of the most important recent Fourth Amendment cases, Carpenter v. United States in 2018. The issue was, if police want to get cellular location information where a cell phone was at a particular time, do they need a warrant? What did the Framers of the 14th Amendment think about cellular location information? I could go on with examples. They all show why originalism is not workable.

My third major point, originalism is incoherent as a theory. Originalism tells us that we have to follow the original meaning of the Constitution. Well, what was the original meaning of the Constitution with regard to how it should be interpreted? The difficulty is that Article III of the Constitution tells us nothing about judicial review. It doesn’t say that courts have the power to review the constitutionality of statutes or executive actions.

So it’s impossible to know, what did the Framers think how judicial review should be done when we don’t know whether they thought there should be judicial review at all. But even, more many scholars have written persuasively that the Framers of the Constitution didn’t want their views to be controlling. Jeff Powell, a professor at Duke wrote an article 40 years ago, The Original Understanding of Original Understanding.

Boris Bittker, a professor at Yale wrote similarly. And they document that those who wrote the constitution never imagined that their views would be determinative. James Madison took the notes at the Constitutional Convention, and he instructed they not be published until after his death. The reason, that it was a document that should stand on its own, be interpreted into the future. They didn’t mean for their views to be controlling. Well, therefore, if you want to be an originalist, and follow the Framers intent, the Framers didn’t intend originalism, so you have to reject it on that basis.

My fourth and final point is that originalism fails to write a constraint on judges. The primary argument that’s advanced in the literature for originalism is that we want to constrain judges. We don’t want them to be making value choices. The reality is originalism fails to constrain judges. In part, it fails because of what I’ll call the abstraction problem.

At what level of abstraction should we state the purpose of a constitutional provision? Take equal protection. And imagine, the issue is, I alluded to earlier, should discrimination on the basis of sex or sexual orientation be seen as violating equal protection? Well, one way of speaking of the purpose of the Equal Protection Clause, it was meant to protect former slaves, enslaved individuals.

Another way of looking at the purpose of the Equal Protection Clause, it was meant to protect those of African descent from discrimination. That’s what the court said in the Slaughterhouse Cases. Another way of looking at the Equal Protection Clause, is saying its purpose was to protect racial minorities from discrimination.

Another way of conceiving of the purpose of the Equal Protection Clause is say it’s meant to protect any group that’s been historically disadvantaged from discrimination. Or another is it’s to protect any person from arbitrary treatment. Depending on which level abstraction you pick, it will then determine whether or not sex discrimination violates equal protection.

There’s no reason in any a priori sense to elect one level of abstraction over the other. If we can define the level of abstraction generally, that the Constitution is about protecting freedom and liberty, then anything can be justified. And ultimately, that’s the problem with originalism, that if it’s focused at a very specific level of abstraction, it becomes unacceptable. And when it’s focused at a general level of abstraction, anything is justified.

But most of all, originalism is not a constraint because conservative justices ignore it when it doesn’t get the results they want. Take Citizens United v. Federal Election Commission. I challenge anyone to show that the Framers of the First Amendment meant to allow corporations to spend unlimited amounts of money in election campaigns.

Or take Trump v. United States, where the court, on July 1 said, “The President’s absolute immunity from criminal prosecution for official acts taken in office.” If anything is clear about the Framers intent, they meant to reject royal prerogatives. No way to justify Trump v. United States from an originalist perspective.

But in both Citizens United and Trump v. United States. It was the conservative justices, the originalists who came to that conclusion. I would then conclude simply by saying, originalism is a theory that conservatives put forward to make it seem like they’re not imposing their own values in constitutional protection, when that’s exactly what they’re doing. Thank you.

(Applause)

Brian Fitzpatrick: That’s a tough act to follow. But before I try, I do want to start out by addressing the most important thing, that Erwin neglected to address, which is Happy St. Patrick’s Day.

Number two, I have to say thank you as well to Tom Clark for making it possible for me to be here today. Tom, I’ve learned a lot about you since I’ve been here, and your dedication to your family and to the law school is really something that is very impressive. And so thank you so much for inviting me here today.

And thank you to Erwin for allowing me with an honor of a career to be up on the stage with him. He is such a giant. When I was a law student and I was taking federal courts, I learned federal courts out of his horn book on federal jurisdiction. And my students today are using that same horn book, updated many times since. He was very kind to mention my book, The Conservative Case for Class Actions. What he didn’t mention, is he was even more kind to give me a blurb for the back of that book. So I’m very indebted to you Erwin, for that, and for all the other kindnesses that you’ve showed me over the years.

You’re right about a lot of things, but you’re not right about originalism. And let me try to explain why. I clerked for Justice Scalia, as Erwin noted. And Justice Scalia would often tell a story in defense of originalism. And it was the story of the bear. And the story went like this.

Let’s say that you and I were walking along in the forest and we saw a bear. And the bear looked hungry, and the bear started running towards us, and we turned the other direction and ran as fast as we can to get away from the bear. Justice Scalia says, “In the middle of running as fast as I can to outrun the bear, I realize something, I don’t have to run faster than the bear. I only have to run faster than you.”

What is the alternative to originalism? What does Erwin offer us that is better? The book that he wrote,, which inspired today’s debate is called Worse Than Nothing. He thinks originalism is worse than nothing. Well, I don’t know how many of you are Seinfeld fans, but this is going to be a debate about nothing.

What is Erwin’s nothing? Erwin’s nothing, he puts it this way in that book, he says, “The job of the Supreme Court is to do, ‘What is best for society’” He says in another place, “The job of the Supreme Court is to advance the noblest goals of a modern democratic pluralistic society,” that that’s what we want our Supreme Court justices doing, doing whatever they think is best for us.

This is a scary idea. Nine unelected octogenarians telling us what they think is best for us. Forget King George, now we’ve got King Alito. I don’t want King Alito. I want to tie the hands of King Alito. I want King Alito to be tied to what the Constitution says, and what the Constitution was understood to mean at the time it was written. I don’t want to give Alito carte blanche to whoever, to do whatever he thinks is best for me.

Now Erwin says, “Alito’s already doing this, Brian.” He says, “Alito is already doing this.” Originalism is not tying anyone’s hands. The originalists can do whatever they want to, just as easily as any other justice can. I beg to differ with that? And let me give you some examples.

Abortion, as I said, I clerked for Justice Scalia. There was no issue that Justice Scalia felt more strongly about than abortion. He was a devout Catholic and it pained him every day that abortion was going on around in this country. And he was pained that the Supreme Court enabled that. He would’ve loved to have gotten rid of all of America’s abortion laws, and he would’ve loved to say, “They’re all unconstitutional. That a state cannot give a woman access to abortion.” He would’ve loved to say that. And you know what? There are actually some people out there, scholars, lawyers, who think that that is actually what the Constitution says.

They think that the unborn have due process rights. And if a state passes a law that says you can kill an unborn person, that it violates due process. People have been making that argument for years now. Justice Scalia would’ve loved to embrace that argument. But did he? No. In fact, he said to the contrary. In an article he wrote in a Catholic magazine called First Things, in 2002, he said, “If a state were to permit abortion on demand, I would vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand.

The Constitution says nothing about it. At the time the 14th Amendment due process clause was ratified, some states allowed abortion, some states didn’t. For an originalist, that’s the end of the matter. If a practice coexisted with the constitutional provisions ratification, and no one said anything about it, like, “Hey, that’s unconstitutional now,” for an originalist, that’s the end of the matter. Maybe Justice Scalia was special, but I don’t think so. Let’s talk about Justice Thomas. Gay rights. There’s a case from about 20 years ago called Lawrence v. Texas.

There was a law in Texas that said two consenting adults could not engage in fornication. I happen to be gay. I really don’t like that law. You know who else really didn’t like that law? Clarence Thomas. This is what he wrote about that law in Texas, in his opinion in Lawrence v. Texas. He said, “I write separately to note that the law before the court today is uncommonly silly. If I were a member of the Texas legislature, I would vote to repeal it.” Justice Thomas is a libertarian. He thinks laws against fornication are silly. But laws against fornication have been around since the beginning of time, and no one thought they were unconstitutional until very recently. And for that reason, Justice Thomas said, “My hands are tied. I cannot say this law is unconstitutional.” There are examples of originalists tying their hands with the method.

I could go on and on, the Confrontation Clause, flag burning, there are many, many examples I could give you, but I only have five more minutes. So originalism can constrain. Justice Alito can be reigned in with the method. Now, what about Erwin’s other arguments? Well, it all depends on the level of generality. That’s true in some cases. He’s right that sometimes originalism is going to be hard to do well. Originalism doesn’t supply easy answers all the time. He’s right about that.

TikTok might be a good example of that. But it can give us easy answers a lot of the time too. Fornication, abortion, the death penalty. The Constitution says explicitly, “You can take someone’s life away if you give them due process.” Laws permitting the death penalty have been around since the beginning of time. Those are all very easily resolved by originalists. We shouldn’t throw the method out entirely because sometimes it’s hard, if it’s giving us answers to some of the biggest constitutional questions of the day.

In my lifetime, abortion, the death penalty, and gay rights have been the biggest questions of common law. Originalism answers that completely and clearly. So the fact that there are some others that are harder doesn’t mean we should throw the method away when it works. And we can have a debate up here, about what to do if you’re an originalist and the answer is unclear. If the text is unclear, if the history is unclear, we can have a debate about what to do if you’re an originalist.

My own view is to be a humble originalist. I believe in something called Thayerism. Thayerism is named after James Bradley Thayer. He was a law professor at Harvard a hundred years ago. And he said this, “If the Constitution is unclear, don’t get involved, courts. Let the democratic process work its way.” That’s personally what I would do in those situations, so we can have a debate about whether the originalist judges should do that too.

Some of them don’t, and I admitted that makes me uncomfortable. When they weigh in on something when the history is unclear or the text is unclear. But that doesn’t mean we should throw the method away for everything else. I’m going to turn to what I think is really Erwin’s number one reason why he doesn’t like originalism, the bad results. He listed him for you.

Brown v. Board, Loving v. Virginia, Obergefell, Griswold, Equal Protection for Women. He’s right, originalism does not produce what we consider the right result today in any of those cases. He’s a hundred percent right about that. And I say, “So what?” Why would we think any legal document would always reach the result that any one of us always wants all the time? Of course, that’s too much to expect from any legal document. The document says a few specific things. If you want more things in the document, you have to amend it.

You cannot expect the document to see into the future 200 years and know what everyone today is going to think is right, and what everyone today thinks is wrong. That’s why we’re allowed to amend it. He’s expecting clairvoyance from a legal document. It’s impossible, it’s impractical, and we don’t need it. We have the amendment process.

In addition, all of these cases that he lists that would lead to bad results for an originalist only lead to bad results in hindsight. At the time the Constitution was adopted, at the time these decisions were made, society was debating these questions. Is it clear that if we gave a license to the U.S. Supreme Court to do whatever they think is best for us, that they would’ve reached the right result at the right time in any of these cases? Why wouldn’t the Supreme Court have decided Plessy v. Ferguson exactly how they did, if they were empowered by Erwin to do whatever they thought was best?

When society is debating something, why do we think the Supreme Court’s always going to come out the right way, in what is the right way in hindsight? I think that’s way too much to expect for the Supreme Court at any moment in time. I have no reason to think that Plessy v. Ferguson would’ve come out differently under Erwin’s approach as opposed to an originalist approach.

I see I’m out of time and we’re going to have a little five minutes back and forth, so I’ll respond to the last argument that Erwin made, that originalism is not the original method. I think there’s a response to that and I’ll get to that in a couple minutes.

Erwin Chemerinsky: OK. Until the 1980s, no justice advanced originalists way of interpreting the Constitution. So Professor Fitzpatrick says, “What is my alternative to originalism?” It’s what the Supreme Court did for almost 200 years. It always looked to the text, it looked to see what original meaning would tell us. It wasn’t bound by it. It looked at the structure of the Constitution, it looked at tradition, it looked at precedent, it looked at modern social needs.

That’s what courts should continue to do. I titled my book Worse Than Nothing in response to Justice Scalia. Justice Scalia was fond of saying, “I have a theory, they don’t.” And my point was, his theory is truly worse than nothing, with regard to approaching constitutional interpretation. And I think I show you why with my examples. He says, “But we don’t want the Supreme Court to be able to do anything it wants.”

Here, Professor Fitzpatrick mischaracterizes my position. I didn’t say in the book the things that he paraphrased me as saying. I believe that the Supreme Court has great discretion in interpreting the Constitution. And it’s necessary, and it’s a good thing. But ultimately, the Supreme Court is constrained. They’re interpreting the text. They are bound by precedent, except when they went over rule precedent. And they’re constrained by the political process. If they get too far ahead of the political process, president could appoint people of a different political party and a different ideology to replace them.

Does that lead to determinate results in particular cases? No, but nor does originalism. My fourth argument was that originalism doesn’t constrain the justices. In part, because they get to choose the level of abstraction, in part because they ignore originalism, what doesn’t get the results they want. I give the examples here of cases like Citizens United and Trump v. United States.

Here, Professor Fitzpatrick says, “Oh, it does tie the hands of the justices.” And focus on his two examples. One is he says, “Justice Scalia never voted to say that abortion is banned by the United States Constitution.” No case ever came before Justice Scalia posing that question. We don’t know how he would’ve voted if that issue had come before him.

And of course, the entire time he was on the court, there was a majority to find a constitutional right for abortion. The other example Professor Fitzpatrick gives is, in Lawrence v. Texas, Justice Thomas, a conservative, voted to uphold a Texas law prohibiting private, consensual same-sex sexual activity. This is entirely in accord with Justice Thomas’s conservative ideology. That doesn’t show that originalism constrained him in any way. In fact, Lawrence v. Texas is yet another example to show what’s wrong with originalism. We should reject a constitutional theory that tells us a state can prohibit private consensual sexual activity between adults.

I make three other points. First, that originalism is rejected because it leads to undesirable and unacceptable results for society. I say, look at Brown v. Board of Education, Loving v. Virginia, Obergefell v. Hodges Griswold v. Connecticut, protection of women from discrimination. None of those can be justified under originalism.

Professor Fitzpatrick’s exact response was, that I am right. In fact, he said, “I’m a hundred right.” I wish people would say that more often. He says, “None of these can be justified under originalism.” But he says, “So what?” The so what is that any theory should be tested by what it means in practice. And a theory that makes these cases illegitimate would make our society, our Constitution much worse. And we should reject any theory that makes these decisions illegitimate.

Professor Fitzpatrick says, “Amend the Constitution, but it’s so very difficult to amend the Constitution. It’s been amended only 17 times in 1791, in one of those to create another repeal prohibition. Much more important, a minority in society should not need a super majority through the amendment process to protect it.

There never was going to be a constitutional amendment to outlaw segregation. There was never going to be a constitutional amendment to outlaw laws that prohibited interracial marriage. There wasn’t going to be a constitutional amendment for marriage equality. And so it is no answer. The Supreme Court may also get it wrong sometimes, but these are instances where the Supreme Court decisions were vital for the Constitution, and they couldn’t be justified at originalism.

In my second point, I argued that originalism is unworkable. He says, sometimes it works. But that misses the point. So often, for constitutional cases, there’s not agreement among the Framers. There’s not an original meaning you discovered. Just because something wasn’t done in 1791 doesn’t mean that it’s meant to be prohibited by the Framers. Most important, it is absurd to say that the meaning of the Constitution is limited to what was thought in 1791.

How can you possibly resolve issues with regard to TikTok or electronic surveillance from the perspective of the Fourth Amendment? My third argument was that originalism is incoherent, because those who drafted the Constitution didn’t want their original views to be controlling. To that, Professor Fitzpatrick doesn’t respond. Ultimately, the bottom line here is that originalism will be much worse for society, but originalism doesn’t constrain conservatives anyway. And I gave you examples like Citizens United, or Trump v. United States, that show you that originalism is nothing but a guise that conservatives use to make it look like they’re not imposing their values, when that’s exactly what they’re doing.

Brian Fitzpatrick: So Erwin says that I mischaracterized his position by saying that his nothing view is the justices can do whatever they want, but he said it himself just a minute ago. He listed off all the factors, and he snuck in there at the end modern social needs. He thinks the Supreme Court gets to decide what our needs are, and then impose that view from the court on the rest of us.

King Alito is his view. I think that is worse than nothing. Is King Alito telling us what he thinks should be done. Now, I do want to get to this point that the original understanding of constitutional interpretation was not originalism. Erwin mentioned that twice now, he cited some scholars to support his view on that. And my response to that is there’s a lot of other scholars that disagree with those scholars, and Erwin did not address those other scholars in his book.

The scholars that disagree are named John McGinnis and Michael Rappaport. John McGinnis is a professor at Northwestern. Michael Rappaport’s a professor at the University of San Diego. They probably have half a dozen articles now, on what they call original methods. What were the original methods that the founding generation thought people would use to interpret the Constitution? These articles have been published in the best law reviews. And what do they say? They say, quote, “The original interpretive rules were originalist, as that term is conventionally understood.”

Erwin does cite McGinnis and Rappaport, another one of their articles that’s not on original methods in his book, but he doesn’t respond to any of those works. The articles that he does rely on are articles about original intent, that the people who wrote the Constitution did not want their intentions to govern future generations. That’s why the Madison’s notes on the conventions were not published until much later. But Erwin here confuses old originalism with new originalism.

The old originalism, the pre-Scalia originalism was original intent, where we had to figure out what was in the minds of the people who wrote the document. Original intent originalism was rightly rejected a long time ago. The focus among originalists today, including Scalia, is original public meaning, what did the words mean to the public at the time the Constitution was ratified?

Sometimes those words are clear as a bell, as they are with the death penalty. Sometimes those words are not clear, but we know what people thought the words meant because of the practices they were engaged in at the same time the words became the law. You can’t say that something that existed back then is unconstitutional all of a sudden, when the words haven’t changed and everyone thought the practice was fine at the time those words were ratified. Those are cases that originalists can answer very easily.

Why throw those out? Why not say, “At least, Alito, you’ve got to follow those”? In the other cases, you’re allowed to do what you want, but at least you’ve got to follow the ones where the answers are clear. That’s my position and I think that should be the position of Erwin’s as well.

Now, Erwin says that, “What about things that didn’t exist?” What about things that didn’t exist? He says they’re automatically prohibited by originalism. That’s not true. The Air Force, Justice Scalia thought it was constitutional to have an air force, even though the Constitution just says army and navy, because you can make some logical deductions as an originalist, pretty clear, logical deductions sometimes. Now, those are cases that I admit are not crystal clear. When you have to do logical deductions, they’re not crystal clear cases. Those are cases where I would say, “Hands off, judiciary, let the political branches and democracy work its will.”

But whether you come at it from that vantage point or by making clear logical deductions, you can still accommodate many, many new practices. If something didn’t exist at the time, then that means judiciary, be humble. That means judiciary, let the democratic process work out its course.

Now I admit, not all originalists are as humble as I am. And we can have debates about whether they should be more humble, and I welcome those debates. But I don’t think we need to throw the method out all together for that reason. The last point I want to respond to in this five minute segment is Erwin’s view that minorities should not have to rely upon the amendment process to get their constitutional rights. How else do you get constitutional rights, but through a majoritarian vote? How did the Constitution get there to begin with? A majority of the people had to vote it in.

The only rights we have in a democracy are the rights we choose to give ourselves. There’s no other way around it. How else is the Supreme Court supposed to know? When does this minority group get their right recognized and when they don’t? How’s the Supreme Court supposed to figure that out, unless we have a legal process where the public has voted to give those rights to that minority group? Erwin.

Erwin Chemerinsky: I make four separate arguments against originalism. First, that originalism should be rejected because it leads to undesirable and unacceptable results. Notice that never has Brian denied that Brown vs. Board of Education, Loving vs. Virginia, Obergefell vs. Hodges, Griswold vs. Connecticut, Protection of Women Equal Protection could not be justified from originalist perspective. Nor does he ever quarrel that we should choose a theory based on what it means in practice.

His response most recently says that it’s wrong to look at modern social needs. We strongly disagree. There’s no way to explain Brown vs. Board of Education except thankfully that our views with regard to race evolved over time, or Loving v. Virginia, or Obergefell, or the Protection of Women from Discrimination, or Griswold v. Connecticut. And courts should take these into account. They shouldn’t be wedded to the views of 1868.

Also, the reality is, courts inevitably will have to look to modern social needs. Under strict scrutiny, they decide what’s a compelling interest, under an immediate scrutiny, what’s an important interest, on a rational basis, what’s a legitimate interest. That all requires looking at modern social needs. He says, “We should rely on the democratic process even to protect minorities.”

I think the one thing we can agree on is, they’re never has been a constitutional amendment to abolish segregation. There’s never been a constitutional amendment to say that states can’t prohibit interracial marriage. There’s never been a constitutional amendment to say that gay and lesbian individuals have the right to marry.

So in light of all of this, this shows you why a minority should not have to rely on the majority to be protected. Instead, we should have courts interpreting the Constitution, as they did, and as they have, to provide protection. Any theory that rejects these cases should be rejected.

Second, I argue that original is unworkable in practice. I say that we can’t have an original meaning that’s there to be discovered. There’s such disagreement at the time. He said, well, originalism has changed from looking at Framers intent to looking at original public meaning. In fact, conservatives are quite equivocal about this.

I quoted from Kennedy v. Bremerton Schools in 2022, as Gorsuch said, “We determined the meaning of the establishment clause by looking at the views of the Founding Fathers.” That’s the old kind of originalism ,just practiced a couple of years ago. But whether it is old or new originalism, it assumes that there is an original meaning to be discovered. And so rarely is there, certainly, as to most important constitutional issues. I said, as to the Second Amendment, Justice Thomas says, “Unless there was that kind of gun regulation in 1791, it’s not allowed today.” But why is the fact that they didn’t have that kind of regulation now to be taken as they meant to prohibit it?

And finally, I say, for so many constitutional issues, you can’t look to what the world was in 1787 or 1791. You can’t find answers for it. And so originalism isn’t helpful as a constitutional method of interpretation, and so we need the court to have something else, and that’s not originalism.

I make a third argument that says that originalism is incoherent. And here we have dueling law professors. I can point for example to law professors Jeff Powell, Boris Bittker, a wonderful new book by Jonathan Gienapp, a professor at Stanford. He points to Professor McGinnis and Rappaport. But I think he’s missing the major point here. And that is, there’s no indication that the Framers of the Constitution meant for there to be judicial review. There wasn’t judicial review in England. And you’d think, if the Framers wanted to create something as major as judicial review, they would’ve said so in Article III of the Constitution.

It’s been debated ever since Marbury v. Madison, whether or not judicial review was intended by the Constitution. But how can you possibly say, “This is what the Framers of the Constitution intended as to how it should be interpreted,” when they can’t even establish the intended judicial review?

Also, this isn’t about the experts. Think about things like James Madison, didn’t want the notes from the Constitutional Convention to be published until after his death. There’s many statements at the time, but they thought that the Constitution would live on its own. Take the words of none other than John Marshall, “We must never forget that it’s a constitution we’re expounding, a constitution we adapt and endure for ages to come.”

My fourth and final point is that originalism doesn’t actually constrain. Justices get to choose the level of abstraction to come to the result they want. And conservatives don’t follow originalism, what doesn’t get to the results they want.

He keeps wanting to talk about King Alito. Well, King Alito was in the majority in Citizens United v. Federal Election Commission, including that corporations had the right to spend unlimited amounts of money in election. Originalism didn’t constrain him. Or take Shelby County v. Holder, where King Alito was in the majority saying a key provision of the Voting Rights Act was unconstitutional because it violated the principle of equal state sovereignty.

There’s nothing in the Constitution about that. Same Congress that ratified the 14th Amendment also voted for Reconstruction, powerfully showing they didn’t want all states to be treated the same. Or you can take Trump v. United States, so inconsistent with the Framer’s rejection of royal prerogatives. King Alito was in the majority their too.

What this shows is, that conservatives follow originalism when it comes to the results they like and ignore originalism when it doesn’t get to the results they like. Originalism is nothing but a guise that conservatives put forward to make it look like they’re not imposing their values when that’s exactly what they’re doing. We should reject originalism as a terrible form of constitutional interpretation.

Brian Fitzpatrick: So originalism is not a guise for doing whatever the court wants, whatever the originalist justices want, but sometimes originalism is not going to give you a good answer. And then, you have to engage in what’s best for society, what Erwin wants the Supreme Court to do. In Trump v. United States, Citizens United, these are cases where I think originalism doesn’t supply a very clear answer. And so what are the justices doing? They’re groping around for Erwin’s considerations. They’re doing what Erwin wants.

But the cases where the original understanding is clear, the justices are voting the right way, even when it is contrary to their own views. He says, “Well, Scalia never had a case raising the issue of whether a law that permits abortion is unconstitutional.” That’s true, but he said it clear is a bell to an audience that did not want to hear it, members of the Catholic Church. He said, “Sorry, guys, but those laws are constitutional, because I’m an originalist.”

I don’t know why he thinks Justice Thomas was lying when he told us in Lawrence v. Texas, he thought the Texas law was silly. He is a libertarian. I think that he actually thought that that law was very silly. When the answers are clear from the text and the history, the originalists vote the right way. When the answers are unclear, they have room to roam. And Erwin wants them to have room to roam, so I don’t know why he’s so upset with them when they’re just following his own method.

On the point about judicial review being unclear at the founding, so therefore, how can we even engage in a discussion of what the original method of interpretation was, well, first of all, judicial review was not unclear for state laws. That’s why the supremacy clause is in the Constitution, it was well understood the federal judiciary would have to review the constitutionality of state laws.

It is unclear, it was unclear, whether the judiciary would have the same powers with regard to federal laws. He’s right about that. But that doesn’t mean that the question of what’s the right way to interpret the Constitution is therefore irrelevant. It just means that each department of the government would have to interpret the Constitution in their department. But still the question remains, how were they supposed to interpret the Constitution in their department? And what McGinnis and Rappaport say, in several articles that Erwin never responds to, is that they would have said originalism.

Let me end on, what I think, again, is his main motivation here today, which is the bad results. The bad results. He thinks we need to look at modern social needs. And you know what? I agree with him. I think we do have to look at modern social needs. The question is who should be looking at modern social needs?

Nine unelected octogenarians deciding what our needs are or the people? We can change our laws whenever we want to. We should be the ones that get to decide when modern social needs demand something and when they don’t. And we don’t even have to amend the Constitution all the time to get the things we want. You don’t like segregation? You can pass a statute that says don’t segregate the schools. You don’t need to amend the Constitution to get that result.

We the people should be the ones that determine when our needs are not being met. We should not trust these nine unelected people to figure that out on their own and hope they get to the answers that we want. That best guarantee to get what society needs is to put it in writing in the Constitution or a statute, not to hope the Supreme Court finds their way there. Thank you very much.

Erwin Chemerinsky: And as promised, we have 15 minutes for questions. You me to? Please? Oh, there’s microphones coming. We have to give Hunter his steps.

Audience 1: Thank you. I want to thank both of you so much. I thought it was a really excellent debate. I think the point that you ended on, Professor Fitzpatrick, was really salient to me, in terms of, there is an originalist alternative to these big cases like Brown v. Board, which is, the Supreme Court does not extend its hand in this way, and then the people rise up, and organize, and pass a statute, or some groundbreaking legislation.

I think the ADA is a really good example of organization and popular movement where there was no Supreme Court action, and that is how we got groundbreaking protections for a certain group of people. But then I would push back and I would ask, I love for both of you to speak a little bit about the way that judicial review as a concept, as a doctrine, plays into that. Because on the other hand, when Congress speaks pretty unequivocally, and says, “We don’t want guns in schools,” or something like that, there’s definitely the originalist impulse to say, “Well, there wasn’t a rule about that at the time. And the Constitution should prohibit this sort of popular movement to protect people’s social needs in the present day.” And so I’d love to hear more about the interplay between judicial review and democratic consensus.

Brian Fitzpatrick: Go ahead. You go first.

Erwin Chemerinsky: I’m so glad you asked that question, because Brian said that in the last rebuttal, after I didn’t get a chance to respond to it. And so now I get that opportunity. Let’s take Brown v. Board of Education. How long would it have taken southern states to pass laws that outlawed segregation of schools? Congress wasn’t going to do so, not given the filibuster in the Senate, and not given the dominance of Southerners in chairing committees.

Would it have been another decade, two decades, three decades before Jim Crow laws were struck down? That’s unacceptable. How long was it going to be until the 16 states that still had laws prohibiting interracial marriage would’ve outlawed interracial marriage after 1967? How long would it have been until every state would’ve allowed marriage equality for gays and lesbians? How long would it have been until there would’ve been a recognition that sex discrimination is wrong? We shouldn’t leave the protection of minorities to the majoritarian process? That’s why the Supreme Court was right in all of these cases, even though they couldn’t be justified from an originalist perspective.

Brian Fitzpatrick: I just don’t think there’s an alternative, but to leave our rights to the democratic process. That’s how we got all the rights in the Constitution to begin with. How does the court know when it’s the right time to recognize this minority right? We have to tell it when it is the right time.

I’m sure Erwin is right, that it would’ve taken longer to get the result that we want in Brown v. Board of Education. And that’s tragic. I agree with him. That’s tragic. But when we hope the Supreme Court does the right thing, then it kills all of the democratic activism around these issues. We would’ve had the equal Rights Amendment in the Constitution, but for the fact that Supreme Court gave a weakened equal protection right to women in those cases that Erwin referred to earlier. We don’t need to hope and pray that the Supreme Court gets the right answers. We can do it ourselves.

I don’t know how much longer it would take to do some of these things. I mean, as I said earlier, I’m gay, I’m married. I don’t want Obergefell to go away. On the other hand, if I can’t persuade my fellow citizens to give me a certain right, I’m not sure that I really deserve that. This is the democratic process. This is what it means to live in a democracy. If I can’t persuade my fellow citizens I’m right about something, why should I win? That is … and listen, democracy is not perfect, as we know very well right now. But it …

Erwin Chemerinsky: Let me respond …

Brian Fitzpatrick: Yeah.

Erwin Chemerinsky: … and then you can reply to me again. I think one of the most fundamental purpose of the Constitution is to protect minorities. After all, the very nature of a constitution is different than all other laws in it’s how difficult to change. And I don’t think we should say, “Well, if the people in the United States wouldn’t have eliminated Jim Crow laws for another 30 years, we should shrug and accept that.” I think Brown v. Board of Education is the epitome of exactly what the Supreme Court is there for.

Yes, at times, the Supreme Court has handed down tragic decisions, but Brown wasn’t one of them. And any theory that makes Brown illegitimate, is when we should reject. Brian just said, quote, “Judicial activism,” and I’ll quote his words, “kills the democratic activism.” I think it’s exactly the opposite. I think Brown v. Board of Education was integral in unleashing the Civil Rights Movement.

I don’t think you get social change just through the court, but I don’t think you would’ve gotten the Civil Rights Movement in the late ’50s and the ’60s that really was a major long overdue social revolution without Brown v. Board of Education. In terms of the ERA, one of the things that Brian said in the debate was, “Amend the Constitution rather than have the court protect rights.”

Look how difficult it’s been to get the Equal Rights Amendment adopted, even a very simple statement that equal rights under law should not be denied an account of sex. I think that shows why we don’t leave the rights of a politically disadvantaged group, or any minority, to the political process. That’s why we just can’t say, “Well, we’ll rely on the amendment process.”

Brian Fitzpatrick: I just don’t know what it means to say that the Supreme Court’s job is to protect minorities. What if two minority groups are opposed to something? For example, affirmative action. A lot of Asians don’t like affirmative action. A lot of Blacks do. What’s the Supreme Court to do when two minorities are pitted against each other?

It is an incoherent theory, to say the Supreme Court’s job is to always side with the minority group, to always side with minority rights. We have to have a method to know when the minority group wins and when the minority group doesn’t win. The only method is to tie the hands of the court to what we write down. I know it’s uncomfortable to say the only rights we have are the ones that we give ourselves, but I just don’t know how to square any other answer with living in a democratic country.

Yes, I wish that my views always prevailed, but why do I get that privilege? Why do I always get my views to prevail if I can’t persuade other people that I’m right about something? I don’t think that I have that right, and I don’t think Justice Alito has that right either. I think we should be the ones to decide what rights we have and not hope that he gets it right.

Erwin Chemerinsky: Go ahead, please.

Audience 2: I’d like both speakers to address Trump v. United States with respect to how …

Erwin Chemerinsky: Well, then take the microphone because it’s hard to hear up here.

Audience 2: Could both speakers please address Trump v. United States as to how the originalist doctrine would play out in that case? And particularly, it strikes me that Justice Sotomayor wrote an originalist dissent, taking through all the many clauses of the Constitution that appear to recognize the possibility of criminal prosecution of a president, for they can be impeached, but there’s nothing that says they can’t be criminally prosecuted, treason, bribery, et cetera, et cetera. So it strikes me that Sotomayor’s dissent is the originalist perspective. And how, if at all, can the majority’s view be defended from an originalist perspective?

Brian Fitzpatrick: May I start there, Erwin?

Erwin Chemerinsky: Sure.

Brian Fitzpatrick: I agree with you a hundred percent. I don’t think that the majority decision in Trump v. United States was originalist. I don’t think they even tried to be an originalist there. I haven’t looked into the history carefully myself, but I kind of agree with the logic that you alluded to, which is, if you could be impeached for these things, why can’t you be criminally prosecuted for those things? You obviously don’t have immunity from impeachment. Why would you necessarily have immunity from other things?

So at least the things mentioned in the impeachment clause, my intuition was that those things ought to be proscribable by the criminal law as well. So my view is that’s not a good case to point to, because the Supreme Court wasn’t even trying to be originalist. They were doing what Erwin wants them to do, which is try to figure out what’s best for society. They thought it would be very bad for society if subsequent administrations could weaponize the criminal law and go after their political opponents like they do in Latin American countries. They thought that’d be really bad. So that’s why they made the decision they did.

And the difference between Erwin and I is, we can say the Supreme Court did not do what an originalist would want to do, using my method. With his method, where they’re just supposed to do whatever’s best for society, we really can’t criticize them on that score, because they’re doing what they thought was best for society.

Erwin Chemerinsky: Brian, you attribute to me things that I didn’t say. For example, in response to the prior question, you said, “My position is the court should,” I’m quoting you, “always side with minorities.” That’s not my position. My position is that under equal protection, the court should be protecting minorities even when the majority isn’t going to protect them. We shouldn’t have to have minorities in society rely just on the majority or supermajority.

I certainly respect the importance of democracy, but I think the whole point of the Constitution is to limit democracy. And I think we are much better off as a society, having a court with the power to give us Brown, and Loving, and Obergefell,, and Griswold and Protection of Women From Discrimination, than we would saying, “It’s just all left of the political process, and we’ll accept Jim Crow laws as long as there’s a political process that’s willing to tolerate it.”

With regard to my approach, I’m not saying that the court can or should do anything that it wants. I think what the court should be doing is as it’s done through history. Look at the text, look at what the Framers intended, look at the structure of the Constitution, look at history, look at tradition, look at modern social needs. We totally agree that Trump v. United States can’t be justified in originalist perspective. But that then illustrates one of my points, the conservatives on the court ignore originalism, when it doesn’t get to the results it doesn’t want, what it wants. It just ignores originalism when it doesn’t get to the results that it likes. In Trump v. United States, the originalist justices, Thomas, and Gorsuch, and Barrett, Kavanaugh, Alito, I don’t know that Roberts is an originalist, they’re the majority. They ignore originalism because it doesn’t get to the results it wants.

You mentioned affirmative action. I think it’s pretty clear that the Framers of the Constitution, specifically of the 14th Amendment, meant to allow race conscious programs of the sort we call affirmative action. But the majority in Students for Fair Admissions v. President and Fellows of Harvard College ignore that history because it doesn’t come to the results that it wants outlawing affirmative action.

So I think what’s wrong with Trump v. United States is that it’s so inconsistent what the value should be in terms of the rule of law. The rule of law, which I think is a core constitutional value, is that no one, not even the president, is above the law. And the court abandoned that in Trump v. United States, following their conservative ideology, ruling in favor of Donald Trump for political reasons, rather than following what the Constitution and checks and balances should be about.

Brian Fitzpatrick: I just want to say one thing, Erwin. So I don’t think the conservative justices ignore originalism when it’s inconvenient. I think they can’t do it when the answer’s not very clear. And Trump v. United States may have been one of those cases. I gave you my intuition about it, but I haven’t looked at the history as closely as I hope they have. Erwin accused me of mischaracterizing his position when I said that he said that the court should always side with minorities. So my question is simply this, Erwin, if not always, then when? If not always, then when? If not when the Constitution’s text and history says you’re supposed to side with the minority, when are you supposed to side with the minorities?

Erwin Chemerinsky: I think the court has given us the answer to that. When the government is discriminating against a racial minority, the government should lose, unless it meets strict scrutiny, unless it can show the action as necessary to achieve a compelling purpose. And that’s not novel. That’s what the Supreme Court has said, and that’s what the Supreme Court should follow.

Brian Fitzpatrick: So just racial minorities, not other minorities?

Erwin Chemerinsky: No, I started … Of course, I think that equal protection isn’t limited to just protecting minorities. I think equal protection should be understood as protecting anyone from arbitrary treatment by the government. Let me go ahead and take, I think we have time for one or two more questions. Go ahead, in the front.

Audience 3: Thank you. When the Founding Fathers decided to start America, it was one of the first democratic civilizations, and as such, they were clearly people that could see a little further into the future. As it was one of the first times it’s been done, they didn’t know exactly how it was going to happen.

So pertaining to things like TikTok, when the Constitution was written, they didn’t specify whether it was newspapers, or writings, or tablets that would be distributed, they just said that freedom of speech should be allowed in all forms. So with things like TikTok, originalism did keep in mind that, as ways of communications advanced, so too would the ways that they would be guarded. For things like TikTok, especially, originalism did keep in mind that things like TikTok would happen, things that they couldn’t see, but they could still understand that it would occur.

So with originalism, people like Benjamin Franklin, scientists who knew, especially, that research would occur, that things that they couldn’t imagine would happen, they knew that the Constitution had to guard these ideas. And as such, originalism definitely had in mind that as science went on, these things should still be protected by the same laws.

Erwin Chemerinsky: Let’s take the text of the First Amendment. It begins, “Congress shall make no law.” Well, we know the First Amendment is no longer limited to Congress. It would really be unthinkable to say the President should be able to violate freedom of speech when Congress can’t. And the Supreme Court has said at least since 1925, that state and local governments can’t violate freedom of speech. Now, you could say, from an originalist perspective, the First Amendment should just apply to Congress, but none of us would want that First Amendment. Shall make no law, none of us believe that no law really means no law. We all agree that perjury can be a crime. We all agree that if someone goes into a bank and says, with a note, “Give me your money or I’m going to blow up the bank,” it’s no defense to say, “I didn’t really have a bomb.”

We all agree that an employer shouldn’t be able to say to an employee, “Sleep with me or you’re fired.” So we all agree that no law doesn’t mean no law. Well, in fact, law, we also believe that the government can violate the First Amendment, even without it being a law.

We can think of instances where governments and the way that they quell protests are violating the First Amendment. So the text of the First Amendment, and what the Framers intended, isn’t very helpful. The very first words, “Congress shall make no law,” aren’t things that we believe. The reality is, and this is our fundamental disagreement, I think that the Framers, as John Marshall said, “Wrote a constitution often in open-ended language because they wanted it to evolve over time.”

They didn’t believe that they had all understanding and all meaning. They really believed that they were writing a constitution that would, in the words of John Marshall, “be adapted and endure for ages to come.” The more we limit the meaning of the Constitution today to the world of 1787, the more absurd it is to be governed by that Constitution in the early 21st century.

Brian Fitzpatrick: I’ll just say one thing very briefly. If it’s so absurd and no one would want it, then it’d be very easy to amend the Constitution to get what we want.

Audience 4: No, it’s not.

Erwin Chemerinsky: I think we’re already over our time. I’m getting the signal here. Thank you so much for coming. There’s a reception above in the donor’s lobby. And thanks again to Tom Clark for making it possible.

Brian Fitzpatrick: Thanks, Erwin.

Erwin Chemerinsky: It was fun.

Brian Fitzpatrick: A real pleasure. Real pleasure.

(Applause)

(Music: “Silver Lanyard” by Blue Dot Sessions)

Anne Brice (outro): You’ve been listening to Berkeley Talks, a UC Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at Berkeley. Follow us wherever you listen to your podcasts. You can find all of our podcast episodes, with transcripts and photos, on UC Berkeley News at news.berkeley.edu/podcasts.

(Music fades out)