Moreover, it is a myth to think that even identifying an originalist understanding can solve most modern constitutional issues. Can original public meaning really provide useful insights about the meaning of the Fourth Amendment and whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes or obtain stored cellular phone location information without a warrant?
Also, what often is overlooked is that conservative justices ignore original meaning when it does not serve their purpose. One of the worst decisions in recent years was Shelby County v. Holder in 2013, which struck down key provisions of the Voting Rights Act that required states with a history of race discrimination in voting to obtain approval from the attorney general or a panel of judges before making significant changes in their election systems.
The court, voting 5-4, said that this violated the principle that Congress must treat all states alike. But no such requirement is found in the Constitution. Moreover, the Congress that ratified the 14th Amendment imposed Reconstruction on Southern states, showing that it did not mean to treat all states alike.
In fact, Congress after the Civil War adopted many race-conscious programs that today would be regarded as affirmative action. Yet Justice Scalia and his originalist colleague Clarence Thomas ignored this original understanding in repeatedly declaring that all forms of affirmative action are unconstitutional.
If Hillary Clinton had won the presidency in 2016 and replaced Justices Scalia, Anthony Kennedy and Ruth Bader Ginsburg, originalism would have faded in importance. Justice Thomas would have been the only originalist on the court and the theory would have been kept alive only by some conservative law professors.
But now, with the confirmation of Judge Barrett, it will be a dominant theory on the Supreme Court. Make no mistake, it is just as much a threat to all of our rights as when Robert Bork espoused it more than 30 years ago.
Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, is the author, with Howard Gillman, of “The Religion Clauses: The Case for Separating Church and State.”
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