Worse Than Nothing: The Dangerous Fallacy of Originalism

by Erwin Chemerinsky

Overview

Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation
 
“Chemerinsky . . . offers a concise, point-by-point refutation of the theory [of originalism]. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.”—David Cole, New York Review of Books
 
Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars but is now a well-accepted mode of constitutional interpretation. Three of the Supreme Court’s nine justices explicitly embrace the originalist approach, as do increasing numbers of judges in the lower courts.
 
Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be inflexible and shows how it is often impossible to know what the “original intent” of any particular provision was. Perhaps worst of all, though its supporters tout it as a politically neutral and objective method, originalist interpretation tends to disappear when its results fail to conform to modern conservative ideology.

Product Details

ISBN-13:	9780300273984
Publisher:	Yale University Press
Publication date:	06/06/2023
Pages:	264
Sales rank:	88,747
Product dimensions:	5.50(w) x 8.40(h) x 0.70(d)

About the Author

Erwin Chemerinsky is Jesse H. Choper Distinguished Professor of Law and Dean of the Berkeley Law School, University of California at Berkeley. He is the author of fifteen books, including Free Speech on Campus and Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable.

Table of Contents

Preface ix

Chapter 1 The Rise of Originalism 1

Chapter 2 The Allure of Originalism 25

Chapter 3 The Epistemological Problem 44

Chapter 4 The Incoherence Problem 75

Chapter 5 The Abhorrence Problem 92

Chapter 6 The Modernity Problem 115

Chapter 7 The Hypocrisy Problem 139

Chapter 8 In Defense of Non-Originalism 166

Chapter 9 We Should Be Afraid 186

Notes 209

Acknowledgments 239

Index 241

Editorial Reviews

Chemerinsky . . . offers a concise, point-by-point refutation of the theory [of originalism]. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.”—David Cole, New York Review of Books

Listed by Wall Street Journal in “12 Books to Read: The Best Reviews of September”

“Lucid [and] convincing . . . [with] sensible arguments opposing what seems like the wave of the future.”—Kirkus Reviews

“[A] timely and devastating refutation of originalism. . . . Chemerinsky is eminently qualified to mount this critique. . . . [It is] the definitive obituary of originalism.”—Stephen Rohde, Los Angeles Review of Books

“Chemerinsky has written a powerful, respectful but devastating critique of the political practice known as originalism. This rich and careful book provides essential context for understanding the confusions and self-deceptions of that project.”—Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago

“Worse Than Nothing addresses an exceptionally timely and significant issue. Chemerinsky provides a definitive account of the rise and pitfalls of originalism that is accessible to a broad audience of lawyers and nonlawyers alike.”—Leah Litman, professor of law, University of Michigan Law School

“Worse Than Nothing is a devastating, concise, and beautifully written critique of originalism. It is a must read for anyone interested in the current debates about originalism and constitutional interpretation.”—Eric J. Segall, author of Originalism as Faith

“Originalism mistakenly seeks to slavishly tie interpretation of our living Constitution to a single point in time. Nowhere is this mistake more forcefully and clearly explained than in this excellent new book by Erwin Chemerinsky.”—Martin H. Redish, author of Judicial Independence and the American Constitution

“Clear, concise and devastating. . . . A must-read for anyone interested in the Constitution and its contemporary meaning.”—David Cole, national legal director of the ACLU
 

From the Publisher

“Worse Than Nothing addresses an exceptionally timely and significant issue. Chemerinsky provides a definitive account of the rise and pitfalls of originalism that is accessible to a broad audience of lawyers and nonlawyers alike.”—Leah Litman, Professor of Law, University of Michigan Law School

Leah Litman

“Chemerinsky has written a powerful, respectful but devastating critique of the political practice known as originalism. This rich and careful book provides essential context for understanding the confusions and self-deceptions of that project.”—Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago

Aziz Huq

“Originalism mistakenly seeks to slavishly tie interpretation of our living Constitution to a single point in time. Nowhere is this mistake more forcefully and clearly explained than in this excellent new book by Erwin Chemerinsky.”—Martin H. Redish, author of Judicial Independence and the American Constitution

Martin Redish

“Worse Than Nothing is a devastating, concise, and beautifully written critique of originalism. It is a must read for anyone interested in the current debates about originalism and constitutional interpretation.”—Eric J. Segall, author of Originalism as Faith

Eric Segall

2022-08-12
A legal expert examines “a dangerous approach to constitutional law that would jeopardize many basic rights and advances in equality.”

In his latest, Chemerinsky, the dean of Berkeley Law School, delivers a lucid, convincing attack on a prominent legal philosophy, though he admits that it is unlikely to change its adherents’ minds. The author writes that the Constitution is an impressive document written by brilliant men who considered it a framework that defined the responsibilities and limitations of government. For nearly two centuries, judges interpreted it broadly to deal with issues in an ever changing world. Matters changed after World War II when the Supreme Court issued a series of decisions that infuriated conservatives, certain they were based on the judges’ personal (and liberal) values. At only four pages, the Constitution seems limited, but scholars maintained that intense study would reveal the Founders’ true intentions. Proponents of originalism postulated that those intentions, plus their beliefs at the time they wrote the document (and of those who wrote amendments), must serve as the sole determining factors for a legal decision. Chemerinsky maintains that this makes no sense. Madison and Hamilton violently disagreed on major constitutional issues of executive power and of Congress’ spending power. Who was right? The 14th Amendment, which guarantees “equal protection,” has long been taken literally, but the intent of the framers in 1868 was to protect freed slaves. Therefore, originalists insist, it does not forbid discrimination against women, racial minorities, the disabled, or gay citizens. They maintain that there is no constitutional right to privacy because the Constitution doesn’t mention it. In a disheartening look toward the future, Chemerinsky warns that the Supreme Court, now solidly originalist, will radically transform our nation in the decades to come. Roe v. Wade has been overturned already, and the author also explores rulings that restrict environmental protection and immigration and expand the right to carry guns.

Sensible arguments opposing what seems like the wave of the future.

Kirkus Reviews