PDF Summary:Worse Than Nothing, by Erwin Chemerinsky

In Worse Than Nothing, Erwin Chemerinsky shines a light on the controversial theory of constitutional originalism. He systematically dismantles the notion that binding constitutional interpretation to the original meaning or intentions of the Framers is feasible or desirable.

Chemerinsky analyzes originalism's rise to prominence as well as its many flaws and counterintuitive implications. From the difficulties of ascertaining original meaning to the repugnant outcomes it can produce, he builds a case for rejecting originalism and instead embracing a living, evolving Constitution interpreted through diverse sources and modern values.

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Chemerinsky extends this logic to other areas, noting that applying originalism would permit other forms of racial discrimination like bans on interracial marriage. Additionally, he suggests that interpreting the Establishment Clause from an originalist perspective would invalidate doctrines mandating separation of church and state and permit official state religions and government-sponsored religious exercises. He notes that interpreting the First Amendment’s Free Speech clause from an originalist perspective would permit the government to criminalize blasphemy and seditious libel, with disastrous consequences for free speech.

Practical Tips

• Create a personal "norm evolution" journal where you track changes in your perception of social norms over time. Start by writing down your current beliefs and how they relate to existing social norms. Periodically review and update your journal with new insights or changes in your perspective. This practice will help you become more aware of how your beliefs evolve and prevent you from clinging to outdated norms.
• Start a personal blog or social media page dedicated to "Historical Mythbusting." Share instances where you've found historical records to be misrepresented to fit certain narratives. Explain the original claim, the process you went through to investigate it, and what you discovered. This not only helps you solidify your understanding but also educates others on the importance of scrutinizing historical information.
• Create a personal blog or social media page where you analyze current legal cases through the lens of originalism versus modernism. Write about how different interpretations could lead to varying outcomes, particularly in cases related to racial discrimination. This will not only refine your critical thinking skills but also educate others on the potential effects of different legal philosophies.
• Start a blog or podcast discussing hypothetical scenarios where a state religion or government-sponsored religious exercise exists, using creative storytelling to illustrate the potential impacts on daily life, community dynamics, and interfaith relations.
• Engage in conversations with friends or online forums about the implications of restricting certain types of speech, focusing on blasphemy and seditious libel. This will help you articulate your thoughts and understand others' perspectives on free speech. You might pose hypothetical scenarios where such speech is criminalized and discuss the potential social and political outcomes.

Originalists Avoid Unpalatable Conclusions By Abstracting Original Meaning or Abandoning It

The issue of repugnant outcomes poses a dilemma for originalists. As Chemerinsky explains, they can try to salvage the theory by expressing the initial intent of constitutional clauses in a less specific and more generalized way, rather than their specific original understanding. For example, they can define "equal protection" as a general principle prohibiting the creation of "castes," and then interpret modern gender discrimination laws as consistent with this principle, even though the Amendment's creators and adopters likely did not intend it to apply to women.

However, Chemerinsky contends that embracing this strategy makes originalism no different than other interpretive approaches. Expressing the original understanding in an abstract enough manner allows justices or judges to rationalize almost any outcome, negating the very limitations on judicial discretion that originalism was intended to provide.

Practical Tips

• You can explore your moral boundaries by writing a short story where characters face ethical dilemmas similar to those originalists encounter. This creative exercise pushes you to articulate and confront your values, as you'll have to decide how your characters resolve these conflicts. For example, a character might have to choose between upholding a tradition that has negative consequences or challenging the status quo to promote change.
• Develop a habit of engaging in discussions with friends or family about current events with a twist: try to connect today's issues back to the foundational principles of your country. For example, when talking about a new piece of legislation or a court case, attempt to trace its roots back to the original intentions of your country's founders. This will not only deepen your conversations but also improve your ability to see the bigger picture in political and social developments.
• Reflect on your own biases and behaviors by keeping a journal where you note any instances where you might have unconsciously contributed to creating "castes." This self-reflection can be eye-opening and help you make more conscious decisions in the future. For instance, if you realize you tend to socialize with people from similar backgrounds, challenge yourself to step out of your comfort zone and engage with a more diverse group of individuals.
• Volunteer to audit your company's policies against current gender discrimination laws. This involves reviewing your workplace's policies, procedures, and practices to ensure they align with the principles of modern gender discrimination laws. You don't need legal expertise; just compare the company's policies with a checklist derived from the laws to spot potential inconsistencies or areas for improvement.
• Engage with interactive online simulations or games that allow you to play the role of a judge making decisions on cases. This virtual experience can help you understand the challenges judges face when balancing the letter of the law with the need for discretion. Look for platforms that provide a range of scenarios, from straightforward to complex, to see how different levels of discretion can alter the outcomes.

Difficulties of Modernity

Beyond the difficulties of ascertaining original meaning or reconciling it with contemporary values, Chemerinsky identifies another major flaw: originalist thought frequently provides little meaningful guidance for navigating complex modern issues that the Constitution's Framers could not have envisioned.

Originalism Lacks Guidance for Modern Issues Like Surveillance, Internet, and Assault Weapons

Chemerinsky argues that attempting to determine the Framers' intentions behind the constitutional regulation of surveillance technology, the internet, or assault weapons is a futile attempt to impose an outdated framework onto an entirely different world. He highlights how applying the originalist standard of physical trespass for determining Fourth Amendment "searches" makes little sense when law enforcement can employ sophisticated technology to surveil individuals without physically intruding on their premises. Attempting to fit new technologies into categories envisioned centuries ago, Chemerinsky suggests, distorts constitutional interpretation and fails to provide adequate protections for individual rights.

This "modernity problem" further highlights how challenging it is to apply eighteenth-century understandings to contemporary concerns. Chemerinsky notes that originalism lacks any foundation for regulating the internet, which the Framers obviously could not have envisioned. Furthermore, trying to determine how much power Congress has to address issues that require national regulation, such as environmental protection, through the lens of the Framers' intentions risks unduly constraining federal power and hindering effective government responses to pressing social problems.

Practical Tips

• You can engage in informed voting by researching candidates' stances on technology and privacy issues to ensure your values align with legislative actions. When election time comes around, look beyond the usual hot-button topics and delve into how each candidate plans to address the evolution of surveillance technology, internet regulation, and firearm laws. This will help you cast a vote that supports a future where these complex issues are handled in a way that resonates with your perspective on privacy and security.
• Use privacy-focused tools and services for your online activities. Opt for search engines that don't track your searches, messaging apps with end-to-end encryption, and virtual private networks (VPNs) to mask your internet activity. By doing so, you're taking proactive steps to protect your digital presence from unwarranted intrusion, aligning with the spirit of privacy rights.
• Engage with local government representatives about the importance of updating legal frameworks to accommodate new technologies. Prepare a concise brief that outlines specific areas where current laws fall short in addressing technological advancements, such as the use of facial recognition software in public spaces, and suggest the formation of a committee to address these gaps.
• Create a personal "Bill of Rights" that reflects your understanding of necessary protections. Think about the rights you believe are essential for a fair society and write them down. Compare your list with the actual Bill of Rights and consider where you think additional protections might be needed. This exercise can help you articulate your stance on individual rights and prepare you for discussions or advocacy.
• Create a visual timeline that juxtaposes eighteenth-century milestones with today's advancements. Use free graphic design tools like Canva to craft a comparative timeline, which can help you visualize the progress and recurring patterns over time. For instance, place the invention of the steam engine alongside the development of electric cars, and discuss the societal impacts of each.
• Engage with your local representatives by writing letters or emails expressing your concerns about the lack of foundational regulation for the internet. By voicing your opinion, you can influence policymakers to consider new frameworks that are better suited to the digital age.
• Create a discussion group with friends or community members to debate specific cases where the framers' intentions might conflict with modern needs. Each member could present a case where they believe federal power was either unjustly constrained or expanded due to historical interpretation. This activity fosters critical thinking and a deeper appreciation for the complexities of applying historical intent to current governance.
• You can enhance your understanding of government responses by volunteering with a local non-profit that addresses social issues. By doing so, you'll gain firsthand experience with the challenges these organizations face, including any bureaucratic obstacles that might impede their work. This real-world insight can provide a deeper appreciation for the complexities involved in crafting effective government policies.

Originalism Is Impractical Due to Societal and Technological Changes

Chemerinsky contends that originalism is ultimately unworkable because of the profound changes in American society, technology, and the size and scope of government. He cites the dramatic increase in the country’s population, geographic reach, complexity, and the rise of federal government agencies as evidence of how antiquated originalist approaches are when applied to modern society.

Chemerinsky highlights the impracticality of rigidly adhering to the Framers’ limited vision of federal authority in a vastly different world. He argues that it's nonsensical to ask about the Founders' opinions on regulating the internet when such a technology was unimaginable in 1787. The same applies to numerous areas of constitutional law where trying to apply eighteenth-century understandings to present-day issues either leads to absurd or dangerous results or requires so much abstraction that originalism loses its constraining power and becomes indistinguishable from non-originalism.

Context

• Other interpretive methods, such as the living Constitution approach, advocate for a more adaptable understanding of the text, allowing for interpretations that consider contemporary values and circumstances.
• The establishment and growth of agencies like the FDA, EPA, and FCC reflect the need for specialized regulation and oversight in areas that did not exist when the Constitution was written.
• The U.S. population has grown from about 4 million in 1790 to over 330 million today. This dramatic increase has led to more complex societal needs and issues, requiring a more expansive and adaptive federal government.
• Courts often use principles of statutory interpretation to apply old laws to new situations, which can involve analogical reasoning or the development of new doctrines to address unprecedented issues.
• Since the 18th century, technological advancements like the internet, artificial intelligence, and biotechnology have created new legal challenges that the Framers could not have anticipated, making strict originalist interpretations difficult.

The Hypocrisy Problem

This section provides a more nuanced critique by examining how originalist justices, despite their professed adherence to original meaning, often abandon their methodology when it doesn't result in outcomes aligned with their conservative political ideology. Chemerinsky points to specific cases to illustrate this disparity, demonstrating that originalism frequently serves as a rhetorical tool masking value judgments as objective interpretations.

Originalist Justices Depart From Originalism When Conservative Results Are Elusive, Undermining the Claim of Constraining Judicial Discretion

Chemerinsky argues that a lack of neutrality weakens the assertion that originalism constrains judicial discretion. He contends that originalists, especially those serving as Supreme Court justices, frequently set aside their approach when it conflicts with their conservative political ideology. This selectivity, he suggests, exposes originalism not as a genuine theory of interpretation but as a convenient justification to mask value judgments passed off as objective readings of the Constitution.

He highlights four cases in which Justices who call themselves originalists have forsaken that philosophy to attain their desired results:

• Shelby County v Holder: The Court invalidated a crucial section of the VRA by relying on a "equal state sovereignty" doctrine that's absent from the Constitution and unsupported by any evidence of original meaning. Chemerinsky argues that the only plausible explanation for the decision is a conservative desire to maximize states' rights to the detriment of federal authority to protect voting rights. Originalism here was a rhetorical shield, not a method of interpretation.

• Decisions on the 11th Amendment: The 11th Amendment prevents federal courts from hearing lawsuits filed by people from one state against a different state. It makes no mention of lawsuits against the state brought by its own citizens, nor those claiming violations of federal law, including the Constitution. Yet conservative justices have interpreted this Amendment to bar virtually all lawsuits targeting state authorities in U.S. courts and even to block lawsuits in state court. Chemerinsky shows how this has no foundation in original meaning; it is purely a conservative value judgment to immunize state governments from liability.

• Citizens United: Originalist justices, in a decision overturning campaign finance regulations, held that corporations have a First Amendment right to spend unlimited sums in elections, even though the Framers could not have envisioned either modern campaign financing or modern corporations. Chemerinsky argues that this conclusion cannot be reached through any plausible interpretation of the First Amendment's language or its original intent. The justices' conservative views clearly drove the decision.

• Affirmative Action: Originalist Justices Scalia and Thomas both vehemently denied that affirmative action programs were constitutional. But a true originalist approach, Chemerinsky contends, would actually support affirmative action, as the historical record demonstrates that the Fourteenth Amendment’s original meaning wasn’t intended to impose a requirement for color-blindness.

Other Perspectives

• Some may assert that the cases cited are being interpreted through a biased lens and that the originalist reasoning in those decisions is sound and consistent with the philosophy.
• The argument assumes that originalism is the only or primary method for constraining judicial discretion, whereas it could be one of multiple tools used by justices to interpret the law.
• The perception that justices depart from originalism could be due to the complexity and ambiguity inherent in historical texts, which allows for multiple reasonable interpretations.
• The decision in Shelby County v. Holder could be defended on the grounds that the Voting Rights Act's preclearance requirements were based on historical data that may no longer reflect current conditions, and thus revisiting the issue is within the Court's purview.
• The interpretation of the 11th Amendment by the justices might be seen as an effort to protect the states from an overreach of federal judicial power, which some could argue is in line with the intentions of the framers to create a union with strong state sovereignty.
• The Citizens United decision may be seen as an application of the principle that the First Amendment's free speech protections are not limited to individuals but extend to associations of individuals, including corporations, as they are comprised of individuals who wish to collectively express political views.
• Justices Scalia and Thomas may have interpreted the equal protection clause of the Fourteenth Amendment as requiring the government to treat all individuals equally, without regard to race, which could lead them to view affirmative action as a form of racial preference inconsistent with constitutional principles.

Examples: Court Rulings on Voting Rights Act, State Immunity, Campaign Finance, and Race-Based Policies That Deviate From Originalist Methodology

Chemerinsky’s four case examples highlight the mismatch between a supposedly neutral and objective interpretive methodology and the consistently conservative outcomes from the justices. He argues that these decisions are comprehensible solely as a product of conservative ideology, even when they are couched in originalist language.

Chemerinsky argues that originalism, when applied consistently, would force the justices to reach many conclusions that would be at odds with their conservative ideological views, such as ruling campaign finance legislation constitutional, and upholding that affirmative action is constitutional. In short, justices who label themselves originalists only adhere to originalism when it yields results that align with conservative ideology.

Other Perspectives

• The perception of a mismatch could be influenced by subjective views on what constitutes a "conservative outcome," and there may be instances where originalist methodology leads to outcomes that are not traditionally considered conservative.
• Some decisions that appear conservative may actually reflect a complex interplay of legal principles, precedent, and constitutional interpretation that goes beyond simple ideological categorization.
• The notion that originalism should lead to conclusions conflicting with conservative views assumes that the original meaning of the Constitution is inherently liberal or progressive, which is itself a debatable point and not an established fact.

The Argument for Not Using Originalism

Chemerinsky concludes by advocating for non-originalism as a more honest and justifiable approach to constitutional interpretation. He argues that the Constitution is best understood as a living document that evolves with time and should be interpreted through consideration of diverse sources, not solely through the lens of a fixed original meaning.

Interpretive Approaches Beyond Originalism Value Diverse Sources

Chemerinsky explains that unlike originalism's narrow focus, non-originalist methods embrace a broader approach, drawing insights from multiple sources beyond the text and original meaning of a constitutional provision. These sources include: post-ratification history and practices, traditions, precedent, foreign law, as well as modern social needs and values.

Enables Constitutional Change and Relevance

Chemerinsky argues that this expansive perspective allows interpreting the Constitution in a way that keeps it relevant to present-day concerns and responsive to a changing world. It permits the interpretation of constitutional articles to evolve through judicial interpretations, adapting to account for changes in social values, technology, and society's needs. The Constitution, Chemerinsky insists, was never meant to be static document frozen in time, but rather a living set of principles that guide governance across generations.

He contrasts the non-originalist method with the originalist perspective, which would limit the Constitution solely to the understandings that prevailed when it was drafted. Chemerinsky notes the absurdity of attempting to grasp the Framers’ intentions behind the governmental regulation of the internet, DNA testing, or other technologies unimaginable in the eighteenth century. The Constitution's broad language, he argues, invites this evolution: words like “cruelty and unusualness in punishment” deliberately invoke general principles subject to evolving notions of societal standards, not a fixed set of historical practices.

Practical Tips

• Create a "Constitution in Action" scrapbook where you collect local stories, court cases, or legislative actions that illustrate the Constitution's application to present-day concerns. This visual and narrative compilation serves as a personal exploration of how the Constitution remains alive and relevant in everyday life.
• Start a journal where you reflect on daily news stories that involve technology and consider the implications if historical intentions were strictly applied. This practice will sharpen your critical thinking skills and give you a personal understanding of the challenges in interpreting historical documents in the modern age. For instance, when you read about a new gene-editing breakthrough, write down how different interpretations of the Framers' intentions could affect legislation on this technology.
• You can explore the adaptability of constitutional principles by starting a blog that analyzes current events in light of those principles. Write posts that examine how recent court decisions or legislation align with the broad language of the Constitution. For example, discuss how a new privacy law reflects the evolving interpretation of the Fourth Amendment's protection against unreasonable searches and seizures.

Non-Originalism Enhances Transparency as Judges Must Directly Discuss and Explain the Values and Policies Behind What They Decide

Beyond incorporating diverse sources and fostering a dynamic interpretation of the Constitution, Chemerinsky contends that non-originalism promotes a more honest and transparent approach to constitutional decision-making. By acknowledging the inevitable role of value judgments in constitutional interpretation, non-originalism encourages judges to openly discuss and defend the values and policies underlying their decisions.

For Chemerinsky, this transparency is essential to maintaining the legitimacy of judges' ability to interpret laws within a democracy. When judges rely solely on originalism, they often obscure their own value judgments by claiming adherence to a neutral and objective standard. Non-originalism, by contrast, necessitates direct engagement with the difficult policy questions at the heart of constitutional controversies by the courts. This openness allows for more informed conversations among the public about the values being protected and promotes greater accountability for court rulings.

Practical Tips

• Create a "decision map" for complex choices you face, visually laying out the values and policies that guide your decision-making process. This can be as simple as a flowchart on paper where each decision point is connected to a value or policy you hold important. When faced with a decision about whether to volunteer your time, your decision map might show paths dictated by values like community, personal growth, or time management.
• Implement a 'transparency jar' at home or with your peers, where each person can contribute questions or topics they feel need more clarity. Regularly select a topic from the jar and hold a group discussion to demystify it, ensuring everyone's viewpoints are considered. This encourages a transparent exchange of ideas and helps develop a habit of seeking and providing clear explanations.
• Implement a "devil's advocate" exercise in your problem-solving routine. When faced with a decision, intentionally argue against your initial inclination to ensure you've considered all angles. This can be done alone by writing out the opposing arguments or with a partner who challenges your position. This strategy helps to ensure that your decisions are well-rounded and not just a product of your first instinct or bias.
• Engage in role-reversal debates where you argue from a perspective opposite to your own on issues related to constitutional values. This exercise will force you to explore and understand the values that others hold and why they might interpret certain rights or principles differently, enhancing your ability to have informed conversations.
• Initiate transparent discussions within your social circle by organizing a monthly "Values and Decisions" meetup. At these gatherings, each participant can share a recent decision they made, along with the underlying values and policies that shaped it. This encourages a culture of openness and can lead to deeper understanding and respect for diverse perspectives among your friends and family.
• Create a personal "idea map" where you visually connect different concepts and sources related to a complex issue. Use a large poster or digital mind-mapping tool to draw connections between what you learn from various sources. For instance, when exploring the concept of democracy, include insights from political theorists, activists, historians, and current news events to see how the concept evolves in different contexts.

Constitutional Interpretation Inherently Indeterminate

The inability to yield clear and determinate answers, often perceived as a weakness of a non-originalist approach, is, for Chemerinsky, a consequence of the inherent nature of constitutional interpretation. He argues that this indeterminacy is not a defect of methodology but rather a necessary feature of any system of constitutional adjudication in which broad principles must be applied to specific and evolving factual circumstances.

Non-Originalism Isn't Purely Subjective: Judges Are Bound by the Text, Structure, History, Precedent, and Democratic Values of the Constitution

Chemerinsky emphasizes that non-originalism isn't an "anything goes" method for constitutional law. While non-originalist judges acknowledge the part value judgments play in their decisions, those judgments are not made in a vacuum. Courts are still bound by numerous constraints: the text and structure of the Constitution, history and tradition, precedent, as well as broader democratic values. Chemerinsky rejects Justice Scalia's characterization of non-originalism as not offering any theoretical basis, highlighting how non-originalists consistently engage with a broader set of materials and interpret those materials with the goal of advancing the goals of constitutional provisions, albeit stated in a more general way.

Practical Tips

• Explore the impact of constitutional constraints on your daily decision-making by creating a "Constitution" for your household. Draft a set of rules that mimic the structure of a formal constitution, outlining the roles and limitations of each family member in decision-making processes. This exercise will give you a practical understanding of how a structured set of rules can guide and limit actions, similar to how judges are bound by the Constitution.
• Enhance your decision-making by creating a "Historical Precedent Journal." Whenever you need to make a significant decision, take a moment to write down any historical precedents or traditions that might inform your choice. Reflecting on how past decisions were made under similar circumstances can provide insight and guide your current decision-making process.
• You can observe decision-making patterns in your workplace to better predict outcomes. By tracking past decisions and their results, you create a personal precedent database. For instance, if your manager tends to favor certain project types, use that knowledge to tailor your proposals accordingly.
• You can observe court proceedings to understand how judges apply democratic values in their decisions. Many courtrooms allow the public to attend hearings, and by witnessing the process, you can see firsthand how judges interpret and uphold democratic principles. For example, notice how a judge ensures fair representation for all parties involved or how they handle cases that involve freedom of speech.
• You can broaden your perspective by creating a 'perspective journal' where you document insights from diverse sources each day. Start by choosing a topic you're interested in, then read about it from various types of materials such as blogs, podcasts, academic papers, and social media posts. Write down key takeaways from each source, noting the differences and similarities in viewpoints. This practice will help you develop a more nuanced understanding of the topic, similar to how non-originalists engage with a wide array of materials.
• You can analyze local policies or laws to identify their underlying goals and brainstorm modern solutions that align with those intentions. For example, if a local ordinance aims to reduce litter, you might propose a community app that gamifies trash collection, rewarding users with local discounts or recognition.

Non-Originalist Understanding: A More Honest and Appropriate Approach to Constitutional Adjudication

Chemerinsky believes that non-originalism offers a more honest and appropriate way to adjudicate the Constitution than originalism. Originalism is unsuccessful in achieving its stated goal of providing a neutral and objective constraint on judicial discretion because of its epistemological limitations, internal incoherence, and potential for yielding repugnant results. Moreover, it is incompatible with how America's Constitution has been interpreted throughout history.

Chemerinsky acknowledges that non-originalism does not provide a formula for reaching determinate results, but argues this is inevitably a feature of any system of constitutional interpretation. The U.S. Constitution's broad and open-ended wording inevitably requires judges to weigh conflicting interests and make value judgments. Non-originalism, by requiring judges to engage openly with these values and choices, fosters a more transparent and accountable system of adjudication. Ultimately, Chemerinsky argues, a "living Constitution," interpreted in light of experience and evolving social values, is far preferable to one rigidly fixed to an outdated and often unknowable original meaning.

Practical Tips

• Write a letter to your local representative expressing your views on non-originalism and its importance in contemporary legal decisions. This activity not only helps solidify your own stance by putting it into words but also contributes to the broader dialogue on constitutional interpretation in the political sphere.
• Engage in role-playing debates with friends or colleagues to explore the consequences of strict rule-following versus flexible interpretation. Assign roles where one person must adhere strictly to a set of rules (akin to originalism) while the other can interpret the rules more flexibly. Afterwards, discuss which approach led to more equitable or practical outcomes. This can illuminate the potential for rigid frameworks to yield repugnant results and the value of interpretative flexibility.
• You can foster adaptability by revising personal goals annually to reflect your evolving values and experiences. As your life circumstances change, so might your priorities. For example, if you initially set a goal to climb the corporate ladder but find over time that work-life balance is more important, adjust your career objectives to seek positions that offer flexibility.

The Consequences of Originalism's Dominance

Chemerinsky ends with a sobering prediction: given the conservative supermajority now on the Supreme Court, originalism will dominate constitutional interpretation in the years ahead and could have profound consequences for the rights and liberties of individuals as well as the balance of power between the federal government and the states.

Conservative Supreme Court Majority's Originalism Could Impact Privacy, Autonomy, Congressional Power, and the Establishment Clause

Chemerinsky asserts that the existing Supreme Court majority, which is conservative and emboldened by originalist principles, is poised to bring about significant and potentially harmful changes to U.S. constitutional jurisprudence. He highlights three areas where the Court's originalist-guided interpretation could erode established rights and protections:

Originalism Endangers Decisions on Reproductive Rights, Marriage Equality, and Liberties

Chemerinsky warns that originalism poses a direct threat to Roe versus Wade. The Court now has a minimum of five votes to overturn Roe, ending the constitutional protection for abortion and leaving the matter to political procedures. Chemerinsky notes that countless laws prohibiting abortions are already in place in many states, only waiting for the high court's approval.

The threat goes well beyond abortion, as virtually every right that the Court identified as protected by the Constitution’s broad and open-ended language could be in jeopardy. Chemerinsky explains that originalism would leave freedoms such as the right to wed, have children, buy and use contraceptives, raise one's offspring, have custody of one's children, preserve family unity, engage in consensual same-sex sexual activity, and refuse medical care unprotected.

Practical Tips

• Volunteer with or donate to organizations that work to protect reproductive rights. By supporting these groups, you contribute to efforts that aim to safeguard the constitutional protections for abortion and related healthcare services.
• Educate yourself on the legislative process by tracking a bill related to abortion laws in your state to understand how laws are formed and changed. By following a bill from introduction to enactment, you'll gain insight into the political mechanisms that could lead to the prohibition of abortions. For example, use a website that tracks state legislation to receive updates on specific bills, attend local government meetings, or participate in public hearings.
• Create a personal blog or social media campaign focused on raising awareness about the importance of personal freedoms in family and relationship contexts. Share stories and information that highlight the real-life implications of these rights being compromised. For instance, you could feature interviews with individuals who have faced challenges in these areas, providing a platform for their experiences to be heard and understood.

Originalists Will Limit Congressional Authority Over Commerce, Boost Government-Sponsored Religion, Reverse Decades of Doctrine

Chemerinsky also predicts that the Court’s conservative majority, relying on an originalist understanding of congressional power, will aggressively seek to limit Congress’s authority to regulate under the Commerce Clause. He explains how this approach could undermine many laws that are crucial to modern government, such as environmental protections, labor regulations, and legislation regarding civil rights. An originalist reading of the commerce provision that prohibits Congress from regulating actions with significant impacts on interstate commerce would overturn decades of precedent and hinder Congress’s capacity to address national problems.

Finally, Chemerinsky predicts that the Court will continue its move away from the separation of church and state, interpreting the Establishment Clause in a way that accommodates government support for religion. He anticipates that the Court will allow greater use of prayer and religious symbols at government-sponsored events and will uphold government aid to religious schools as required by the right to freely practice religion. Recent rulings upholding prayer at town council meetings and permitting a large cross to remain on public land are harbingers of an altered constitutional order where religion is given special favoritism.

Practical Tips

• Engage in micro-advocacy by writing to your representatives about specific issues related to these laws. Use platforms like "Democracy.io" to easily find and contact your elected officials. Personalize your message with local examples of why environmental protection, labor regulations, and civil rights are important to you and your community.
• Engage with local community leaders or representatives to discuss the importance of understanding the commerce provision's interpretation. Propose a community education session where these implications are explained, emphasizing how they could affect local initiatives. This encourages civic engagement and informs community decision-making processes.
• You can educate yourself on the current legal interpretations of the separation of church and state by reading recent court opinions and legal analyses. This will give you a better understanding of how the legal landscape is changing and what it might mean for future cases. For example, if a recent court decision has allowed a religious symbol in a public space, you could read the court's opinion to understand the reasoning behind it.
• Create a dialogue group with friends or neighbors to discuss the impact of these practices on community cohesion. Host regular, informal gatherings where you can share experiences, thoughts, and feelings about the presence of prayer and religious symbols at public events. This can foster understanding and help you navigate the practical implications of these changes in your daily life.
• Create a reading group with friends or community members to discuss books and articles on the topic of religious freedom and education. Use these discussions to deepen your understanding of the issues and to brainstorm ways to support or advocate for policies that align with your views on government aid to religious schools.

Radical Constitutional Shifts Impact Liberties and Power Dynamics

Chemerinsky concludes by sounding the alarm about the imminent radical shifts in the U.S. Constitution. These changes, fueled by the conservative supermajority and its embrace of a flawed originalist methodology, threaten to undermine numerous rights and liberties, constrain the capacity of the federal government to address vital areas of public concern, and undermine the separation of church and state. He maintains that it's imperative to recognize the dangers of originalism and to push back against its dominance if we are to protect the values of a progressive, inclusive, and democratic society.

Other Perspectives

• The notion of a "progressive, inclusive, and democratic society" is itself a value judgment that may not be shared by all, and some may argue that a different interpretation of the Constitution could also support such a society.
• The conservative supermajority's approach could be argued to provide a check against the expansion of government power beyond what is explicitly granted by the Constitution, which some believe is necessary to maintain individual freedoms.
• A more constrained federal government might lead to more fiscal responsibility, reducing the risk of overreach and unsustainable debt, which can also impact public welfare in the long term.
• The fear that the separation of church and state is at risk may be overstated, as the judiciary has a long history of upholding this principle, and any shifts in interpretation would likely be met with robust legal challenges and public discourse.