Explained Why the Constitution is Binding
Rejected "Original Intent" in favor of "Original Public Meaning"
Qualified to Be President Under Article II, Sec. 1, cl. 5
In a recent Op-Ed in the Sacramento Bee, Erwin Chemerinsky, the Dean of Berkeley Law School, criticizes Judge Brett Kavanaugh, President Trump's nominee for the U.S. Supreme Court, for his adherence to originalism as a method of interpretation. Invoking Chief Justice John Marshall's statement that "the Constitution must be adapted for ages to come," Chemerinsky claims that "orginalism is bad for justice." He elaborates as follows:
Chemerinsky is wrong in three different ways. First, he badly misdescribes the methodology of originalism. Second, election of a female president would in no way contradict the original meaning of the Constitution. Third, originalism does not prevent adaption of the Constitution to new circumstances.
First, proponents of originalism expressly and repeatedly reject the "specific intentions of the framers" as the goal of interpretation. Instead, originalism seeks to discern and enforce the "original public meaning" of statutory and constitutional texts. More than two decades ago, Justice Antonin Scalia (pictured above), delivering the Tanner Lecture at Princeton University, rejected the claim that judges should "give effect to the 'intent of the legislature.'" Instead, he said, Judges should seek the objective meaning of the text that the legislature actually enacted. Thus, he quoted with approval the statement by Justice Holmes, subsequently approved by Justice Robert Jackson, that "[w]e do not inquire what the legislature meant; we ask only what the statute means." See Antonin Scalia, A Matter of Interpretation, 16, 23 (Princeton 1997). See also Oliver Wendell Holmes, Collected Legal Papers, 207 (1920), quoted in Schegman Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397 (1951) (Jackson, J., concurring). In the same lecture, Justice Scalia endorsed the very same approach to constitutional interpretation. See Scalia, A Matter of Interpretation, at 38 ("What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.") (emphasis supplied).
The original meaning approach to Constitutional interpretation follows directly from the rationale for treating the Constitution as binding on future generations, a rationale that Chief Justice John Marshall (pictured above) articulated in Marbury v. Madison, 5 U.S. 137, 176-77 (1803). According the Marshall:
"That the People have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis upon which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it be frequently repeated. The principles, therefore, so established are deemed fundamental. And, as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop there or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those powers may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purposes are those powers committed to writing, if these limits may at any time be surpassed by those intended to be restrained?"
. . . . The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable whenever the legislature shall choose to alter it.."
Thus, the Constitution is binding because the People, the ultimate repository of sovereignty, adopted it, enacting permanent, fundamental principles that both empower but also limit the Congress, the President, and Judges. Judges who invoke the Constitution as the source of their authority must adhere to the document as written, thereby enforcing the instrument's fundamental and permanent principles. To do so, of course, Judges must discern what the document meant to those who possessed and exercised the authority to bind others, namely, the People. Refusal to enforce such principles because a judge considers them "unacceptable" repudiates the only legitimate source of judicial authority and is thus lawless.
Second, there may well be instances in which enforcing the original meaning of the Constitution produces results with which most Americans might disagree. Happily, the gender of the President is not such an instance, with the result that outstanding candidates such as Nikki Haley, pictured above, are eligible.
The original meaning approach to Constitutional interpretation follows directly from the rationale for treating the Constitution as binding on future generations, a rationale that Chief Justice John Marshall (pictured above) articulated in Marbury v. Madison, 5 U.S. 137, 176-77 (1803). According the Marshall:
"That the People have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis upon which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it be frequently repeated. The principles, therefore, so established are deemed fundamental. And, as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop there or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those powers may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purposes are those powers committed to writing, if these limits may at any time be surpassed by those intended to be restrained?"
. . . . The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable whenever the legislature shall choose to alter it.."
Thus, the Constitution is binding because the People, the ultimate repository of sovereignty, adopted it, enacting permanent, fundamental principles that both empower but also limit the Congress, the President, and Judges. Judges who invoke the Constitution as the source of their authority must adhere to the document as written, thereby enforcing the instrument's fundamental and permanent principles. To do so, of course, Judges must discern what the document meant to those who possessed and exercised the authority to bind others, namely, the People. Refusal to enforce such principles because a judge considers them "unacceptable" repudiates the only legitimate source of judicial authority and is thus lawless.
Second, there may well be instances in which enforcing the original meaning of the Constitution produces results with which most Americans might disagree. Happily, the gender of the President is not such an instance, with the result that outstanding candidates such as Nikki Haley, pictured above, are eligible.
It may well be that the Framers and Ratifiers assumed or even intended that Presidents and Vice Presidents would be male, Protestant landowners. But they did not enact these assumptions or intentions into law. Article II, Section 1, Clause 5 of the Constitution, aptly known as the "Qualifications Clause," defines the qualifications for holding the office of President.
"No person, except a natural born citizen, or a citizen of the United States, at the time of the adoption of this constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and have been fourteen years a resident of the United States."
Under the "plain meaning" of this provision, women, Catholics, and/or merchants, all of whom are "persons," are eligible to be President. Had the Framers and Ratifiers wished to exclude women, they could have included a clause limiting the Presidency to men, in the same way they precisely limited the office to certain citizens of the United States and persons 35 or older. They did not, however, include any such restriction.
What, though, about the use of the pronoun "he" to describe the length of the President's term in office, for instance? ("He shall hold his office during the term of four years[.])" Does this use create an additional qualification, outside the qualifications clause? Of course not.
It is standard English convention to employ purportedly "masculine" pronouns to refer to a category of persons that includes both men and women. In these circumstances the apparently masculine pronoun in fact functions as a generic pronoun, akin to "they." See e.g. R.W. Burchfield, The New Fowler's Modern English Usage (3d ed. Oxford) ("From the earliest times until about the 1960s it was unquestionably acceptable to use the pronoun he (and him, himself, his) with indefinite reference to mean anyone, a person (of either sex)."); Oliver Strunk and E.B. White, The Elements of Style, 60 (1979) ("The use of he as pronoun for nouns embracing both genders is a simple, practical convention rooted in the beginnings of the English language. He has lost all suggestions of maleness in these circumstances.") (emphasis in original). None of this is to say that "he" always functions as a generic pronoun. The actual meaning will always depend upon context. The most relevant context, of course, is the actual definition of the President's qualifications, which employs the generic term "person," instead of "man." In short, use of the potentially and commonly generic pronoun "he" did not alter the plain meaning of "person" in the Qualifications Clause.
"In the Constitution the President is referred to many times with the pronouns he, him, and his. These references, by common grammatical understanding, refer to a President of either sex."
See Antonin Scalia and Brian Garner, Reading Law: The Interpretation of Legal Texts, 129 (2012). They cite, for instance, Peter Bullions, The Principles of English Grammar (13th Ed. 1845) ("[T]he masculine term has also a general meaning, expressing both male and female, and is always to be used when the office, occupation, profession, etc., and not the sex of the individual, is chiefly to be expressed.").
In the same way, Latin employs masculine nouns or pronouns to refer to groups that include both men and women. Indeed, the front page of Berkeley Law School's own website repeatedly refers to the school's "Alumni," the plural form of a Latin second declension masculine noun. In so doing, the school presumably does not mean to exclude its female graduates!
Third, the original meaning approach to interpretation in no way prevents adaptation of the Constitution "for ages to come." As previously explained on this blog, the Constitution does not necessarily enshrine particular results. Instead, as Marshall explained in Marbury, the document often articulates fundamental and permanent principles. Thus, as the Supreme Court explained more than eight decades ago, changes external to the Constitution can compel courts to sustain legislation once deemed unconstitutional or invalidate legislation once thought perfectly constitutional.
"While the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within their field of operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fail."
See Village of Euclid v. Amber Realty, 272 U.S. 365 (1926).
More recently Justice Scalia explained that changes in technology, external to the Court, can require changed application of the Fourth Amendment's ban on unreasonable searches. The common law principles that animate the Amendment remain constant and unchanged, e.g., police can only hold a suspect so long as reasonably necessary to bring the individual before a magistrate for a probable cause determination. While that period may have been 72 hours in 1791, the reasonable period today, the Justice said "is obviously a function of helicopters and telephones" and thus, he said, 24 hours. See County of Riverside v. McGlaughlin, 500 U.S. 44, 62 n. 1 (1991) (Scalia, J. dissenting).
In short, Originalism survives Dean Chemerinsky's critique entirely unscathed.
More recently Justice Scalia explained that changes in technology, external to the Court, can require changed application of the Fourth Amendment's ban on unreasonable searches. The common law principles that animate the Amendment remain constant and unchanged, e.g., police can only hold a suspect so long as reasonably necessary to bring the individual before a magistrate for a probable cause determination. While that period may have been 72 hours in 1791, the reasonable period today, the Justice said "is obviously a function of helicopters and telephones" and thus, he said, 24 hours. See County of Riverside v. McGlaughlin, 500 U.S. 44, 62 n. 1 (1991) (Scalia, J. dissenting).
In short, Originalism survives Dean Chemerinsky's critique entirely unscathed.
