Sure Originalism has its flaws, but how would you rank the alternative?

January 11th, 2011

Eric Posner has a deft review of Erwin Chemerinsky’s new book, The Conservative Assault on the Constitution in the New Republic. Chemerinsky basically argues that the Roberts Court, as a continuation of the Rehnquist, and even Burger Court, is attempting to destroy the Constitution and roll back all of the precedents he does not like. Nothing too original here. Posner’s review concedes the strengths of Chemerinsky’s arguments (many of which I think are pretty damning), but skillfully highlights their shortcomings, and turns the tables on Erwin.

While Chemerinsky’s attacks on originalism are poignant, his version of constitutional interpretation leaves a lot to be desired:

But when Chemerinsky tries to explain what the Court should have done—respect Warren Court precedents; invent a new right to education and equalize school financing; strengthen desegregation and promote affirmative action; recognize a new right to protection from the government; restrain executive power; banish religion from the public sphere; strengthen the rights of gays and lesbians; and increase access to the courts—he gets into trouble.

On the role of stare decisis, Chemerinsky does not have a leg to stand on. Liberals assail Ciitzens United as an activist decision, yet routinely praise Warren Court precedents that overturned longstanding precedents without any concern for the value of stare decisis in the criminal procedure and other contexts. For better or worse, stare decisis is flexible:

Chemerinsky criticizes conservative justices for violating precedent, but it does not bother him that the Warren Court violated precedent. He criticizes fellow liberals for relying on the general principles underlying constitutional provisions, correctly noting that they can be used to justify anything—but he does the same thing himself (“the Court should be guided by the underlying goal of creating a more perfect union, of upholding the decency of every individual, and of advancing liberty and equality in society,” among other hokum). Sometimes he argues for particular outcomes by relying on existing doctrine; at other times he argues that existing doctrine is wrong and should be revised. He criticizes conservatives for believing that judges can decide cases in a value-free way, but his own arguments appeal to transcendent legal norms like precedent and legal text.

As Posner notes, non-originalists frequently, and selectively, drape themselves in the text and history of the Constitution when convenient, and ignore it when it conflicts with their agenda:

Despite his contempt for originalism, Chemerinsky makes originalist arguments himself. Wherever convenient, he cites the Constitution and the views of the founding generation.

Read the rest of Posner’s review. It’s quite good.