Erwin Chemerinsky is a left-of-center legal scholar and prolific author who is now Dean of the University of California’s Berkeley School of Hall, formerly known as Boalt Hall (named after a prominent 19th century attorney, John Henry Boalt, whose widow funded construction of the school’s initial building over a century ago). Berkeley’s law school was re-named—before Chemerinsky became Dean on July 1 , 2017—in part due to sensitivity regarding its namesake’s opposition to Chinese immigration and advocacy of the 1882 Chinese Exclusion Act. I raise this because the issue of heightened “sensitivity”—frequently resulting in the removal or re-naming of historical memorials—currently roils higher education in a number of ways, including the suppression on campus of viewpoints considered to be objectionable.
The latest tract by Erwin Chemerinsky, liberal law professor and dean of the University of California at Irvine School of Law, is depressingly familiar. Like his Enhancing Government: Federalism for the 21st Century (2008), The Conservative Assault on the Constitution (2011), and The Case Against the Supreme Court (2014), his new book is a diatribe masquerading as legal scholarship. The usual villains—conservative Supreme Court justices, malevolent government officials, rapacious corporations, racist police officers—are pitted against the wrongly accused, helpless consumers, and oppressed victims of discrimination. Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable presents one-sided vignettes drawn from actual…
Hillary Clinton is the odds on favorite to be the next President of the United States. From a reporter this weekend, I learned that her possible victory has offered an occasion for Dean Erwin Chemerinsky to argue that the original meaning of the Constitution would prevent her from being President. His primary contention is that women are excluded form the highest office because the original Constitution refers in many places to the President as “he.” Of course, Dean Chemerinsky does not believe that the Constitution correctly interpreted actually prevents Clinton from becoming President nor is he predicting that any court will so hold. He just wants to score points against originalism.
But his argument shows that he understands little about originalism and seemingly less about the plain text of the Constitution. First, the language of the Constitution has to be interpreted against the linguistic convention that existed at that time (and indeed despite its political incorrectness may exist even now) that the masculine reference can include females. Lest there be any doubt that this was a convention at the Framing, one just has to consult the King James Bible, surely the book best known in the United States in 1789.