Worse Than Nothing

The Dangerous Fallacy of Originalism

By: Erwin Chemerinsky

Narrated by: Daniel Henning

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.

©2022 Erwin Chemerinsky (P)2022 Tantor

Good distillation of the problems with originalism

This is a good, short book that explicates some powerful arguments about the limits of originalism. There is some fluff but it’s still a worthwhile read. Don’t expect a grand, compelling alternative judicial philosophy though, the author doesn’t have one.

Professor Chemerinsky demolishes originalism at SCOTUS

This is the definitive work if you want to understand "originalism" as a method of deciding the constitutionality of laws or actions. It is rather a difficult listen given all the cases it cites, and their subtleties and complications. The author is not shy about exposing the flawed methodology and the Justices who hide behind it.

Thorough and detailed

Takes an a side in an ongoing debate but does so openly and as part of an intellectual engagement. Very well done.

As a lay person

I found it clear and understandable. A lot of complex and nuanced concepts presented that I’d never known much less considered presented in a way that I could follow and understand. Thank you to the author.

Impeccably Logical, Backed by 100 Specific Example

Read Chemerinsky's engaging book that rigorously exposes Originalism for the bogus facade it has always been. Then read a book wherein Scalia tries to justify Originalism. The comparison will reveal the underlying vagueness of Scalia's writings and arguments.