Worse Than Nothing

From The Wall Street Journal:

America’s most solemn civic ceremony, the presidential inauguration, centers around the oath of office. The president swears to “preserve, protect and defend the Constitution of the United States.” But when the Constitution’s meaning is the subject of heated disputes, what exactly is the president committing himself to?

The same question might occur to newly enlisted soldiers, when they swear their oath to “support and defend the Constitution” against “all enemies, foreign and domestic.” Or to newly naturalized citizens, who do the same. Many of the Constitution’s provisions are plain and precise, but others are “majestic generalities,” as Justice Robert Jackson put it eight decades ago; they need to be interpreted by elected leaders, by civil servants and by citizens.

And by the Supreme Court, of course, which tends to be the final arbiter of it all. Chief Justice Charles Evans Hughes put the point bluntly a few years before his first appointment to the Court: “We are under a Constitution,” he said in 1907, “but the Constitution is what the judges say it is.” It’s not exactly true, but it’s true enough; look no further than our annual obsession with justices’ year-end blockbuster decisions. So on Inauguration Day, is the president pledging himself to preserve, protect and defend the musings of nine black-robed, life-tenured lawyers?

Forty years ago, conservative lawyers began to offer an alternative. They urged the Supreme Court to read the Constitution in accordance with the Founding Fathers’ original intent. “Originalism,” as it came to be known, emerged in the wake of decisions like Roe v. Wade, but also in the echoes of the nation’s bicentennial celebration, when Americans rediscovered their interest in—and affection for—the men who declared the states’ independence and who framed the nation’s republican Constitution.

The conservative legal movement began with law professors such as Robert Bork and Antonin Scalia, and a generation of law students who would found the Federalist Society and energize the Reagan Justice Department. Then came a wave of federal judges, including Bork and Scalia themselves, who applied constitutional originalism in actual cases. Their ideas gained weight in the courts of law and, crucially, in the court of public opinion.

Early on, originalists reframed their general notions of the Founders’ original “intent” into somewhat more objective considerations of the Constitution’s original public “meaning”—that is, of what a constitutional provision’s particular words meant to the public at the time of their ratification. Law professors published countless books and law-review articles analyzing the Constitution’s words, providing intellectual building blocks for Supreme Court lawyers’ briefs and justices’ opinions. In the Court, oral arguments re-centered around close analyses of the original meaning of statutory and constitutional texts, an approach known as “textualism.”

The first originalists and textualists were confident dissenters, in both academia and the judiciary. But after decades of research and argument, they now find themselves in the majority at the Supreme Court, even overturning Roe v. Wade itself.

Perhaps the best sign of the originalists’ success is the fact that so many progressive legal scholars and litigators now attempt to frame their own arguments in originalist (or at least “originalish”) terms, such as Yale law professor Jack Balkin’s Living Originalism. In 2015, one of President Obama’s own appointees to the Court, Justice Elena Kagan, told a Harvard Law School audience that “we’re all textualists now, in a way that just was not remotely true when Justice Scalia join[ed] the bench.”

But this summer Justice Kagan revisited her widely quoted quip. In West Virginia v. EPA, the Court ruled that climate regulators had exceeded the limits of the Clean Air Act, and she dissented from the majority’s reading of the law. “It seems I was wrong,” she wrote. “The current court is textualist only when being so suits it.”

Days later, at a judicial conference in Montana, she told the audience that inconsistency would undermine originalist judges’ credibility: “You have to apply methods that in fact discipline and constrain you, and you have to apply those methods consistently over cases, whether you like the outcomes they produce or whether you don’t like the outcomes they produce.” She was challenging originalists to be the best version of themselves.

Erwin Chemerinsky, dean of the Berkeley Law School, goes further. In “Worse Than Nothing: The Dangerous Fallacy of Originalism,” he argues that constitutional originalism could never credibly constrain judicial discretion. “Originalism is not an interpretive theory at all,” he writes. “It is just the rhetoric that conservative justices use to make it seem that they are not imposing their own values, when they are doing exactly that.” His goal, then, is to “expose” originalism as not just a “fallacy” but a “dangerous” one.

Mr. Chemerinsky has long been one of the most pointed critics of originalism—and of originalist justices. When Chief Justice Roberts told his Senate confirmation hearing that judges should strive to be umpires who merely apply the rules instead of making them up, Mr. Chemerinsky blasted him in a law-review article: “Why did Chief Justice Roberts, who obviously knows better, use such a disingenuous analogy?”

Link to the rest at The Wall Street Journal

PG notes that Chemerinsky is regarded by more than a few attorneys as more than a bit left-wing and, although Boalt Hall (the name of the law school) stands high in US law school rankings, it also produces quite a lot of left-wing activists.

That said, to PG’s knowledge, there is no major US law school that is regarded as right-wing or right-wingish.

23 thoughts on “Worse Than Nothing”

  1. Without a concrete example to consider, I’ll have to wait before deciding on Chemerinsky’s arguments. But I’ve read the Roe v. Wade opinion in Con Law class, and the convolutions the writer made to find a right to privacy in the Constitution revealed that it was a fundamentally weak ruling.

    • Worse, because of the “implied” right to privacy, the US is the only major western society without an explicit right to privacy, dscussed and codified, with agreed upon borders, because such a debate would unavoidably be a contentious debate between libertarians and statists and, as usual congress has no stomach for a mature discussion.

      Whatever you might think of the end of RvW, the country is now forced to have the proper discussion and agreed upon compromise other countries have been having for 50 years but not the US because the “settled law” settled nothing and only created more contention for two generations.

      Both discussions, much like the fate of the “dreamers”, the rules of energy production, and the rules of student loan reductions (if any) all belong in the halls of Congress not in some closet of a rule by decree executive or judge. That is the real threat to the republic, not somd mythical “fascist” movement.

      Fact is, the borders of separation of powers, both among the branches and between tbe federal and state levels have been ignored for far too long with the various poles usurping each other’s prerogratives willy nilly and each camp only complaining when they are tbe recipuents of unfunded mandates, nation-wide district court orders, or bussed ilegal immigrants,p; when it is *their* ox getting gored.

      The Constitution was designed to minimize government power, not randomize it.
      Either obey it or abolish it. Starting with the Tenth Amendment.

  2. I must disagree with PG on one thing that he states (although it is largely irrelevant to both his point and the OP):

    There are several major US law schools that are generally characterized as “right wing,” and several others that would be but for skewed rhetoric concerning what is “right” and what is “left” wing, and perhaps different conceptions of what is a “major” law school. One excrutiatingly obvious example sits less than a mile from the future site (if the NIMBYs ever let it get built) of the Barack Obama Presidential Library (how any law school that originated and perpetuates that particular vision of antitrust to the exclusion of all other theories could be called anything but “right-wing” escapes me). The only reason that George Mason might not be a counterexample is the definition of “major”… and in terms of “where graduates end up working,” its pipeline into the heart of the Republican administrations this century argues that it’s “major.” Down the road in Charlottesville, Mr Jefferson’s university’s law school is not exactly left-wing or centrist — it’s more genteely right-wing than I think the OP would be prepared to acknowledge, and nobody can really claim it isn’t a “major” law school.

    Then there’s the problem of the law school in Palo Alto, which has a couple of loudmouthed centrists-with-left-wing-reputations on faculty but is overwhelmingly at least somewhat right of center — even, and perhaps especially, once one untangles “in favor of High Tech” from “what being in favor of High Tech means in a political sense.” And similarly for the law school in Pasadena whose name makes it sound like a state school (but it isn’t): The somewhat hyperbolic reputation of a couple of faculty members is a shield hiding the definitely-right-of-center daggers.

    So I’ve named five law schools that anyone who looked past immediate/obvious labels would consider both “major” and “right wing” without thinking very hard, or pushing the boundary of “major law school” too far. I thus disagree with the somewhat throwaway observation PG makes.

  3. My perspective on RvW is that a woman is person and therefore is allowed under the constitution to pursue freedom, which IMO allows her to choose to have an abortion.

    The problem as I see it comes from two factors:

    1. American abortion regulations are ill thought through; 39 weeks is not an appropriate time to be terminating a pregnancy unless the mother’s life is at risk and the baby is dead in the womb.

    2. The lack prenatal and perinatal care is hindered by the free-market healthcare economy, which fails to address the need for social healthcare (not just for women, but children and the elderly too).

    Oh, and if anyone argues it is killing unborn children first, see point 1. Second think of the children is misused by Democrats when responding to mass shooting, and by Republicans when it is abortion.

    This makes such argument moot, because they are not addressing the real problem…

    Despair when faced with a future where there’s no hope of improving one’s life circumstances. A future where the crime of poverty leads to destitution and squalor.

    • This is really a case of IdiotPoliticians™ choosing to keep a contentious issue alive for their own benefit at the expense of everybody else.

      Most other countries have settled around a 12 week limit. Yet despite clear signs that the court was tired of the fallout of RvW with endless cases, politically motivated “activists” chose to challenge a law setting a 15 week limit. In tbeir absolutist view, any limit is intolerable.

      In the outside world, unrestrained abortion has only been seen in China under One Child (when it was mandatory) and in Russia under the Soviets where it was the preferred form of birth control. (Maybe North Korea.) Fast forward a generation and both societies have terminal demographies and (slowly) collapsing economies that instead of a looming shortage of kids have a present shortage of working age adults. (In China, the biggest shortage is adult women because of sex selection abortions and infanticide.)

      None of those are regimes that rational societies seeking survival should seek to join but that is what US absolutists are seeking to emulate. Particularly irrational in a world with morning after pills.

      The opposite camp is easier to understand because their own absolutism is based on the axiomatic puritanical belief that sex is solely for procreation. Just as irrational.

      ‘Pox pon both houses for inciting unnecessary at a time of global crisis.
      The price of tolerating IdiotPoliticians™. Maybe october will change things.
      (But not for the better.)

      • “The opposite camp is easier to understand because their own absolutism is based on the axiomatic puritanical belief that sex is solely for procreation.”

        While there are some in the pro-life camp who think this, most do not. Rather, they simply believe that procreation is a natural and normal result of sex, rather than something to be avoided at all costs.

        Also, the Puritans themselves liked sex. A lot. They just thought it ought to be had solely within monogamous marriages.

        • So why care somuch about how other people live their lives?
          How does it impact them?
          Puritans were busybodies.

          Neither camp is right.

      • The opposite camp is easier to understand because their own absolutism is based on the axiomatic puritanical belief that sex is solely for procreation.

        No. It’s based on the idea that a fertilized human egg is a human being. They hold the single cell has the same rights to life as a human who has been born. The motivation of the parents has no bearing on the question.

        There are people who believe as you say, but that belief is neither necessary nor sufficient to maintain an anti-abortion stance. However, it may be coincidental, just like a preference for aisle seats on airplane can be coincidental.

        • A fertilized human egg is a potential person. A single cell treated as having rights as a person being born is quite frankly ludicrous. This reasoning can lead to concepts that the seeds of life themselves are somehow sacred.

          The reality of biological reproduction is that every month month eggs are flushed away. Eggs that have been fertilized by sperm don’t always develop – worse case scenario a miscarriage, most such false pregnancies never reach that level because the lining of the womb has already sloughed away taking said potential person’s life in the process.

          So, the question is do we allow religious or other non-evidence based belief about who is a person to decide when a woman can have an abortion?

          I have no easy answer to that question, but any answer that enforces a woman to carry a child that she feels unable to deliver is just wrong. I wouldn’t force women to have an abortion either. The choice, the freedom to choose as an adult is the point.

          Otherwise, I fear, America will become one nation, with one people, under one god (Ein volk, ein kinder, ein fuhrer), rather than many people acting as one nation, celebrating freedom of beliefs.

          TL;DR: the freedom to choose one’s expression of one’s religious beliefs without impacting another person’s choice to not believe.

          • The problem with your contention is that a human embryo is a whole ‘nother entity.

            Your eggs are purely your DNA. A sperm is purely the man’s DNA. An embryo is a combination of the two, which, if everything goes as it should, will become an adult. Also, if you read a biology textbook, it will say that conception is when human life begins. The science is clear on this. The pro-life position is based on the premise that all humans, even the unborn ones, are people with rights who you can’t kill just because they’re inconvenient.

            If they die because something goes wrong, that happens. But people die in accidents or of disease all the time, and we still think homicide is bad.

            TL;DR: The pro-life position actually has scientific evidence behind it, and the religious aspect of it is the notion that killing people who aren’t trying to kill you is bad.

    • A woman is indeed a person allowed to pursue freedom under the Constitution. That is essentially what the recent decision said. The decision in no way stands in the way of any woman choosing to pursue an abortion.

      America has a hybrid health care system. Much is provided by the government, and much is provided by the free market. Most of the complaints we hear about prenatal and child care stem from the population covered by government health care.

  4. The whole abortion debate has a simple and effective solution if both camps stop trying to force *their* beliefs on everybody else. If it weren’t for a handful of arrogant idiots imposing *their* values on nine different nations this could have been settled 40 years ago with a county by county referendum. Just treat it like booze and let each community set their own morals and values.

    Note how fine grained the map is.

    Both sides are equally absolutist and both are equally wrong. Both are being used by self-serving politicians.

    Live and let live.
    And worry about global war instead.

    • The anti-abortion side cares about preserving the life of the fetus because they consider it to be a human being with the same right to life as any born human.

      They care very much about the life of the fetus because they see it as threatened.

      They do this because they recognize a common obligation in our overarching social compact to preserve the lives of all peaceful humans. They see no moral or ethical difference between taking the life of a healthy twenty-year-old and taking the life of a fetus.

      Their absolutism is based not on demands that sex be exclusively aimed at procreation, but on the idea that every innocent human life should be protected and preserved.

      I don’t see either side trying to force their beliefs on the other. They are trying to force their will on the other. This is why Roe was originally decided. What cannot be achieved through persuasion, conversion, compromise, or legislation moves to the court to be imposed by fiat. We saw a somewhat similar thing in the recent attempt to amend the Kansas constitution to deny it protected abortion. That was huge strategic blunder motivated by absolutism.

      • “I don’t see either side trying to force their beliefs on the other. They are trying to force their will on the other. ”

        Isn’t that the same thing?
        “Your beliefs don”t matter, only mine. And I have the power to force you to live by them.”
        No different that the woke and the cancel-ers.
        No room for nuance.

        And it all stems from the breakdown of federalism and separation of power the refusal to accept the US is a country made up of many nations and respect their ways.

        Hmm, maybe this is a good point to bring in the latest presentation of THE NINE NATIONS OF NORTH AMERICA”, this one not from a journalist but a historian. Part one:


        • And part two:


          For that matter, the Nine Nations (and the city state aberrations) are themselves aggregates of smaller distinct cultural entities. That is why, like booze, issues of mores like abortion,education, and recreational and coping drugs can’t be dealt with at the federal or even state level.

          Absolutists of both camps operate under the fallacy that state and county borders are merely admistrative entities, meaningless lines on the map like Congresional districts, when in truth they are generally as meaningful as actual country borders in europe given that most such borders date back for generations. Modern communications allow the country and states to appear as unified entities but tbey are not. And, as the OP refuses to accept, the Constitution was molded with that (still enduring) reality in mind.

          Democracy just doesn’t scale gracefully to the tens of millions, much less hundreds of millions. (The UK’s Tony Blair Devolution initiative was a recognition of this reality and, despite their flaws, so does Germany’s regional party federalism.) Proper functioning of tbe republic requires dealing with the various problems of government (economical, crime, border control, national security, and their varios aspects) at the level best suited to handle them.

          States shouldn’t be dealing with border issues any more tban tbe Feds should be dealing with mores yet here we stand with both and many more disfunctions exploding all over.ov

          (FWIW: with all the talk of colonizing Mars over the next generation I’ve been researching both the history of the colonization of the americas, and the economics, demography, and “geography” of a stable society. It’s doable but the rockets should be the least of Musk’s concerns. He’d better choose his colonists from a single very specific tribe.)

          • When Asimov’s characters wondered about the origin of humans, they wondered why people from one planet or another had these odd physical characteristics. Sounds like planets were indeed colonized by tribes.

        • It’s not nuance.

          Forcing beliefs on another means the other guy accepts your beliefs. Forcing your will means I compel you follow my will regardless of your own beliefs. The important distinction is the voluntary vs coerced.

          In the current situation, each side is trying to coerce the other. The alternative is a negotiated settlement where each side agrees to accept their gains, mourn their losses, and forget about coercing anyone.

  5. “PG notes that Chemerinsky is regarded by more than a few attorneys as more than a bit left-wing…”

    This is a textbook ad hominem argument. As a rule of thumb, if your logical fallacy has a Latin or Greek name, making it is simply lazy.

    • Does the Aristotelian fallacy count as having a Greek name? If it doesn’t, it should; it’s among the laziest (and most common) of all fallacies. Denying the very existance of nuance seems rather lazy to me.

    • You’re correct, R.

      I was basically summarizing a lot of opinions, spoken and written, that I have heard/read about the man. I don’t recall anyone ever describing him as a conservative, however.

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