Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation
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.
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.
“Lucid [and] convincing . . . [with] sensible arguments opposing what seems like the wave of the future.”—Kirkus Reviews
“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