Erwin Chemerinsky’s review of Judge Wilkinson’s book, which Mike Ramsey notes below, makes a lot of useful points, but I did want to point out a couple of infelicities. He gives a hybrid definition of originalism, both in terms of the nature of constitutional meaning—unchanging—but also in terms of our access to that meaning—that decisions about original meaning should proceed by ignoring sources after the Constitution’s adoption. Chemerinsky says at page 102 (and in the abstract), "Originalists believe that the meaning of a constitutional provision is fixed at the time of its adoption and is changeable only by constitutional amendment. Under this view, Article I of the Constitution means the same thing as it did in 1787 or the First Amendment means the same thing as it did in 1791, and nothing that has happened since should matter in deciding their meanings."
While the first part–the fixity of constitutional meaning–is properly characteristic of originalism, the latter thesis, about how we go about "deciding" what that meaning is, does not seem right to me. For instance, in investigating the historical meaning of the recess appointments clause, one would be remiss to ignore sources even as late as 2005. Obviously, events in 2005 are not constitutive of constitutional meaning expressed in 1787, but they are relevant to deciding what that 1787 meaning is. A fortiori, sources from, say, the 1790s may be relevant sources of information. Just because the focus of the investigation—the meaning expressed by the constitutional text at the time of adoption—is historically confined to the Founding does not mean that our evidence must be so confined.
Secondly, Chemerinsky at page 107 claims that the Equal Protection Clause is particularly difficult to decipher, repeating Judge Wilkinson's argument that such difficulty is a mark against originalism. Chemerinsky cites Bradwell v. Illinois, 83 U.S. 130 (1873), as an instance of the sort of case that would be difficult for originalists to decide under the Equal Protection Clause. But Bradwell was not an Equal Protection Clause case–it involved a challenge to the exclusion of women from practicing law based on the Privileges or Immunities Clause. Matthew Carpenter's argument for Bradwell argued, in fact, that the Privileges or Immunities Clause was the only clause of the Fourteenth Amendment that would prevent a state from excluding freedmen from practicing law. See 83 U.S. at 136. This is not to say, of course, that the Equal Protection Clause is easy to interpret–for my take on the dog-that-didn't-bite relevance of Bradwell to that question, see here at 273-74–but better care with original materials is needed from those like Chemerinsky who make sweeping claims about the nature of the historical record.
Posted at 2:18 PM