Sotirios Barber

The US Supreme Court has canceled the right of women to end their pregnancies. Could this court now cancel gay rights and other personal liberties, from contraception to parental rights? Yes, Chemerinsky says, if “originalist” judges have their way. The court has weakened the national government's ability to combat unfair labor practices, racial and gender discrimination, and environmental degradation. Could the court further weaken the government's power to address the needs of the American people? Yes again, Chemerinsky says, thanks to originalism. The court seems poised to allow the return of prayer to public schools and taxpayer support for religious activities. Businesses operated by religious believers may soon have a right to deny service to same-sex partners that the law says they must provide to members of minority races (as long as they are straight). Could the old states’ right to establish religions be restored? Yes, Chemerinsky says, for an originalist view of religious freedom would permit this result, and Clarence Thomas, the present court's leading originalist, advocates it.Of course, Thomas and other originalists claim fidelity to the Constitution rather than to personal values and preferences. They say that through research into public understanding of constitutional provisions at the time they were ratified—research into “original public meaning”—judges can avoid imposing their personal values on the country. Chemerinsky does more than dismantle this claim; he exposes it as a calculated fraud. In the book's longest chapter, he surveys half a century of scholarly analysis to demonstrate, point by point, that the personal values of the justices determine the outcome in all but a few of the cases that reach the Supreme Court. Chemerinsky shows that in no question involving guns, religion, personal morality, or governmental power is there a “public meaning” that does not require normative choices. He shows further that no uncontroversial “public meaning” can be inferred from contemporaneous social or governmental practices. Thus, some judges may choose to interpret the Civil War amendments to the Constitution in view of the antimiscegenation and other racist laws widespread in 1868, but no judge has to do so. The amendments’ general language can as easily be thought to envision a color-blind society and to empower color-conscious measures in pursuit of that result. To readers open to evidence and logic, Chemerinsky demonstrates that originalist appeals to historical usage, practices, and intentions, beyond precedent cases and the constitution's general language, are merely “rhetorical ploys”—ways to avoid public responsibility for the value choices that judges cannot avoid making.That originalism is a deliberate fraud rather than a well-intentioned mistake is evident in the hypocrisy of originalists. One of Chemerinsky's several examples involves affirmative action, an issue made especially salient by developments since the publication of the book under review. Their self-styled originalism notwithstanding, Antonin Scalia and Clarence Thomas have opposed affirmative action explicitly on the basis of their personal beliefs about its consequences for the country's race relations. They could not have opposed affirmative action on originalist grounds, for the Reconstruction Congress, which drafted the Fourteenth Amendment, enacted many laws and established several agencies to provide special help for the freedmen struggling in the white supremacist South.Chemerinsky's book disappoints in only one respect: it advances to a threshold that it does not cross. If originalism is as intellectually and morally indefensible as Chemerinsky shows; if it is as subversive politically and culturally as he shows; if “we should be afraid” of originalist judges, as Chemerinsky urges in his concluding chapter, then what about the originalist professoriate—the law professors of the Federalist Society and the political scientists of the constitutional studies programs at American colleges and universities that right-wing organizations fund? Should we not be afraid of them too? Chemerinsky has been a leading legal intellectual for more than a generation. He is also a leading legal administrator. No one is better positioned to influence the agenda of the American legal academy. A question missing from this agenda is what to do about academics who, after half a century of unanswerable criticism, continue to support originalism. Academic freedom does not preclude calling out academic originalists as incompetent or dishonest. Originalism is by now so entrenched academically that nothing less than a national campaign against it would be proportional to its power. Responsible scholars should launch this effort whether Chemerinsky will join them or not, but they should hope that figures of his caliber will do so.

If the U.S. Constitution is a liberal Constitution, liberal governments can have a constitutional obligation to secure positive benefits or welfare rights. The original constitutional text describes a government instrumental to the Preamble's abstract ends or goods. Constitutional rights can be reconciled to the text's instrumentalist logic by viewing them as functional to better conceptions of abstract ends among actors who would compensate for their fallibility. The Federalist confirms the instrumentalism of the constitutional text. Conservative writers who treat negative liberties as constitutional ends err in several ways. They assume rational actors would establish a government for the sake of limiting it, and they ignore the positive nature of goods (life, liberty, property) that are the objects of negative liberties. They also fail to see that tax-supported protections for all positive goods, including the objects of negative liberties, must be justified by public purposes.

James E. Fleming’s new contribution to the interpretive debate successfully exposes “new originalist” failures to find defensible middle ground between a Dworkinian approach to constitutional interpretation and the now widely discredited originalism of Raoul Berger. Fleming also exposes the irony of “new originalist” efforts to vindicate democracy and the rule of law. Less persuasive are Fleming’s reasons for optimism about the future of constitutional theory and fidelity to a constitution that seems increasingly beyond reform.

Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber opposes the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice. Barber contends that no historical, scientific, moral, or metaethical argument can favor today's negative constitutionalism over Madison's positive understanding. He urges scholars to develop a substantive account of constitutional ends for use in critiquing Supreme Court decisions, the policies of elected officials, and the attitudes of the larger public. He defends the philosophical possibility of such theories while also offering a theory of his own as a starting point for the discussion the book will provoke. This theory holds, for example, that voucher schemes which drain resources from secular public schools to schools that would train citizens to submit to religious authority are unconstitutional; First Amendment issues aside, such schemes defeat what is undeniably an element of the "real welfare" of the people, individually and collectively: the capacity to think critically for oneself.