Erwin Chemerinsky on Originalism

UC Irvine Law School Dean Erwin Chemerinsky, one of the nation’s leading constitutional law scholars, recently posted a critique of originalism on the ACS Blog. Unfortunately, the points he makes are uncharacteristically weak. University of San Diego law professors Michael Ramsey and Michael Rappaport do a good job of explaining why. Chemerinsky’s most dubious point is his claim that a consistent originalist must believe that women are constitutionally barred from the presidency, because the Constitution uses the male pronoun “he” in referring to the president. As Ramsey notes, until very recently, male pronouns were commonly “used generically to include both men and women.” This usage may have been sexist. But it was standard practice as recently as my high school days in the late 1980s, and certainly was in the 18th century.

Obviously, as Ramsey also points out, there are serious criticisms of originalism; the theory has its share of weaknesses. But most of the points Chemerinsky raises are not among them. The one exception is his argument that consistent originalism requires rejection of Brown v. Board of Education. This is indeed an important potential weakness of the theory. However, as Rappaport and Ramsey note, Chemerinsky ignores various ways in which Brown could potentially be reconciled with originalism. I would add that these include theories advanced by liberal originalists like Jack Balkin and Akhil Amar, as well as conservatives such as Michael McConnell (whose originalist rationale for Brown is mentioned by Ramsey).