Chemerisnky’s Case of Originalism.

A Thought: *Most of my writing for this blog over the year will be on topics that I read and have a few questions to think about that I would like to crowd source a response, or start a discussion.*

            The case for Originalism as Chemerinsky states it, is arbitrarily applied, and somewhat dumbed down. In an effort to limit its strength. Maybe. In an effort to make understanding why nonoriginalism is a “better alternative?” Possibly. Either way, the theory is stated correctly, in so far, as it tells the newlywed student to constitutional law that this is a simplistic approach that is governed by intention-finding historical analysis. 

            Everyone knows, or should know if they attended law school, the parol evidence rule. Williston’s approach touched specifically on the four-corners of the document. What does it say, did you fully integrate any language from any prior agreement? If so, to what extend is that information allowed to show a dispositive result in the dispute. Likely none if you didn’t include it in the document and it does not tend to show that the document has other meanings. In other words, Williston would say, use basic interpretive rules–canons–to determine if there happens to be an ambiguity. Corbin had a nonoriginalist approach. Allow any and all analysis that would tend to show that the two-parties to the agreement had truly agreed on the underlying contract. The latter approach allows for a far-reaching range of exceptions to blossom. One of which, is the problem that results from lying, perjury, or the allowance of evidence that contradicts the true meaning of the document–or agreement–being observed. Of course, this is a simplistic view of what Williston and Corbin had for philosophies in interpreting whether a documents four-corners should control or whether a judge should decide what is allowable given the surrounding circumstances to determine the issue at hand or to allow a jury to hear the extenuating evidence.

The Williston and Corbin analysis tends to prove that open-ended theories create exceptions to hard-fast rules–sometimes just exceptions to all rules–and is far to broad of a theory when applied to the constitution. Our governmental design cannot flourish on the increased flow of exceptions to every structural provision of the Constitution.

            Chemerinsky’s definition of originalism is correct, if you’re actually, and more realistically, defining the role of a textualist judge. He is also correct in showing that the “democracy argument” is not entirely correct. Majority rule doesn’t quite sum up the American way when it comes to constitutional theory.

            A constitutional republic, as we have been labeled in the past, has not been a discussion of originalism, or nonoriginalism for that matter. The Republic is a governing body that is representative of the community being “ruled” or “governed” by that specific group of representatives. Robert Bork used democracy. Some other originalists have argued that representative consent is the argument, but this does not answer the question because of the consent dilemma (unless the Constitution is continually ratified by the successive generations, consent has not truly occurred). However, the ultimate question is, whether we are a republic by design and a democracy by practice? Can this be attributed to conflicting constitutional theories? Can this be thought as a confusion? Are the terms actually interchangeable? I do not believe they are interchangeable and the representation that we are a democracy in hopes of forwarding any kind of constitutional interpretive theory is disingenuous. Including originalism. 

            The point to this is decidedly that Chemerinsky may have got it wrong, but not by his own fault. Bork misstated the governmental design in hopes of forwarding a theory, so it seems. But, originalism as a theory of constitutional interpretation is ultimately the theory that best reflects the true governmental design proscribed by our constitution. A Constitutional Republic by my opinion. 

** Constitutional Law: Principles and Policy, Erwin Chemerinsky is discussed throughout this post. **