Berkeley Professor: Originalism is Just an Excuse to Take Away Our Rights

UC Berkeley Law Dean Erwin Chemerinsky penned an op-ed for the Sacramento Bee this week urging the Senate to stand up against Supreme Court nominee Brett Kavanaugh because, well, he is one of those dangerous judges who actually believes that the U.S. Constitution means something. That’s a complete distortion of the law, according to Chemerinsky, who says that “the original understanding of the Constitution is unknowable, and even if it could be known, it should not be binding today.” These are the liberals who think they should have a say in America’s direction.

“If constitutional interpretation must follow the specific intentions of the framers, the results often will be unacceptable, if not absurd,” Chemerinsky argues. “The world of today is so radically different from that of 1787, when the Constitution was drafted, or 1791, when the Bill of Rights was ratified, or 1868, when the Fourteenth Amendment guaranteeing equal protection under the law was adopted.

“For example,” he continues, “Article II refers to the president and vice president as ‘he.’ The framers undoubtedly intended that those holding these offices would be men. From an originalist philosophy, it would be unconstitutional to elect a woman as president or vice President until the document is amended.”

Chemerinsky is trying to make the case that Constitutional originalists like Kavanaugh are robots who cannot, by their programming, endorse any idea that isn’t explicitly written down by the Founding Fathers. This is, of course, nonsense. There would not be any need whatsoever for judges if we could find any and all answers in the Constitutional text. Originalists are not robots and they are not stupid. They merely do not believe, as half our Supreme Court (and at least one UC Berkeley professor) believes, that the Constitution can be made to say anything and everything we’d like it to say. And that, yes, we should give more weight to the opinion of the framers than we do to the political trends of any given day.

“’Originalism’ might sound innocuous,” he warns, “but it is really just a guise for conservative justices taking away long-standing rights.”

We’re not sure about “long-standing” rights, but there have certainly been some invented rights over the past hundred years that have little or nothing to do with the Constitution. You can blame liberal Supreme Court judges who believe in a “living, breathing” Constitution for those rights, which include the right to an abortion and the right to marry someone of the same sex. Believe what you will about those “rights,” but you cannot believe that they are to be found in our nation’s founding document.

Of course, Chemerinsky doesn’t believe that either, and that’s why he and his fellow liberals loathe the Constitution and any law that derives from its text. That’s why they despise constitutional originalists; they know that their left-wing “rights” that they’ve secured through politically-motivated court rulings are hanging by a precarious thread. The closer this country gets to a restoration of true, sound legal boundaries, the further away the left’s socialist utopia becomes.

All the more reason to hope that Kavanaugh is confirmed.