Worse Than Nothing: The Dangerous Fallacy of Originalism

Erwin Chemerinsky

sept 2022 · Tantor Media Inc · Loeb: Daniel Henning

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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.

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Erwin Chemerinsky is the dean of the University of California, Berkeley, School of Law. The author of Presumed Guilty, The Conservative Assault on the Constitution, and The Case Against the Supreme Court, among many other works, he lives in Oakland, California.

Daniel Henning is a director, producer, actor, and writer. His work has been seen on HBO, CBS, NBC, ABC, FOX, MTV, Comedy Central, and on stages throughout Southern California. He won a 2017 Telly Award for "Best Writer" for the film version of his play The Tragedy of JFK (as Told by Wm. Shakespeare).