Worse Than Nothing: The Dangerous Fallacy of Originalism

by Erwin Chemerinsky

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.

Genres: Law, Politics, Nonfiction, History, Philosophy, Audiobook, American History

264 pages, Hardcover

First published September 6, 2022

Reviews

[Colleen Browne · Rating 5 out of 5]

"Originalism is a fallacy. It is a rhetorical shield that conservatives use to pretend they are not making value judgments when that is exactly what they are doing."

Chemerinsky argues this point very convincingly throughout the book. Starting with the variety of viewpoints of the Framers from the summer of 1787 when it was written, through the process of adoption throughout the new United States, opinions on what segments of the constitution meant were varied and there could not be agreement on what was meant even then. Chemerinsky ran and was elected head of the commission that rewrote the Los Angeles charter in the 1990's, an experience that gave him a great deal of insight into how these things work. Moreover, in the years following its adoption, the author and others involved in the commission were queried over and over about what was meant by certain clauses. Oftentimes, the questions being asked were never discussed in the writing which lies at the heart of why originalism is so unworkable. Furthermore, for very many modern issues, there can be no way to interpret original intent since they are things that could never have been imagined at the time.

Even though members of SCOTUS have argued that they have looked to original intent to reach their decision to overturn Roe v Wade but they are bluffing since it was never even hinted at in the constitution. First Amendment cases about social media, movies, and television cannot be decided using originalism since they did not exist at the time. Further, by arguing that all cases must be decided using their philosophy, they have placed a few centuries of decisions in jeopardy. Determining what framers intended is usually impossible.

It is curious that if the Framers had intended their interpretation to be used to determine cases throughout our history, why weren't there scribes to take copious notes at the convention so we would know? As the author points out, Madison was the only person there to keep a journal and it was incomplete and often used to insert his own biases, not those of the other members. Perhaps the saddest thing in all of this is that due to the disingenuousness of McConnell and other Republicans who forced through nominees and refused to follow the letter of the Constitution about the nomination process, we are stuck with an extreme right wing court with at least three avowed originalists for many years to come.

At the end of the day, as this court continues to reach decisions by rejecting the principles that previous courts had always used- stare decisis, through examining many sources, and by looking at other countries to see the direction they are taking- there is less support for the court and the constitution becomes irrelevant. From Madison on down, it has been argued that the Constitution is a living document that reflects the realities of the day and maintains the respect of the country. We are in danger of losing that.

This book should be required reading for voters before going to the polls to vote for the president who is responsible for nominating people for the court.

[Alan Johnson · Rating 5 out of 5]

Law professor Erwin Chemerinksy summarizes the overall thesis of his book Worse Than Nothing: The Dangerous Fallacy of Originalism on page 147 (Kindle edition) as follows:

The main argument in support of originalism is that it constrains justices and judges, so that judicial decisions do not simply echo the values of whoever is on the bench. But this argument has a critical flaw: originalists often abandon the method when it fails to give them the results they want. Conservative justices use originalism when it justifies conservative decisions, but they become non-originalist when doing so serves their ideological agenda. This undermines any claim that originalism actually constrains judging and suggests instead that it is not a theory of judging at all but only a rhetorical ploy to make it appear that decisions are based on something other than political ideology.

I agree with about 95 percent of this book. My disagreements are rather minor and mostly involve some applications of Chemerinksy's main principles. These principles, which are well supported by reasoning and evidence, are as follows:

• Originalism is an impossible task. The framers of the 1787 US Constitution and its amendments deliberately used broad language in the most important constitutional provisions, e.g., the Due Process Clause and the Equal Protection Clause. The framers themselves disagreed about the meaning and application of those provisions. So did the ratifiers, and attempts (as by today’s originalists) to ascertain “original meaning” by way of linguistic analysis are futile. The entire exercise is doomed from the start.

• Consequently, today’s originalists, on and off the Supreme Court, cherry pick history to find arguments supporting their ideological preferences. When history does not support their preferred position, they simply ignore originalist analysis and surreptitiously go to some other manner of constitutional interpretation. Originalism is, at its root, hypocritical.

• Originalist jurisprudence, in theory and in practice, pays no mind to the doctrine of stare decisis (precedent). If precedents are perceived to be inconsistent with originalist analysis, they must be overruled. Thus, in 2022, the Supreme Court overruled Roe v. Wade, 410 U.S. 113 (1973), and held that no constitutional right to an abortion exists, thereby discarding almost fifty years of precedent. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). An originalist analysis (under the reigning “original meaning” theory) would also necessarily result in the overruling of Brown v. Board of Education (outlawing racial segregation), Griswold v. Connecticut (recognizing a constitutional right to contraception), Loving v. Virginia (recognizing a constitutional right to interracial marriage), Lawrence v. Texas (recognizing a constitutional right to private, consensual same-sex conduct), and Obergefell v. Hodges (recognizing a constitutional right to same-sex marriage), among many other previously established Supreme Court precedents in the fields of privacy rights, criminal procedure, church-state separation, environmental legislation, administrative regulation, and so forth.

• The alternative to originalism—often called “living constitutionalism”—is not, contrary to originalist dogma, standardless. Rather, it is the careful way the Supreme Court has proceeded, in its most notable cases, from the time of the beginning of the republic. As Chemerinksy stated in another book, “Throughout American history, the Supreme Court has based its constitutional decisions on many sources: the Constitution’s text, its framers’ intent, the Constitution’s structure, the Court’s prior decisions, society’s traditions, and contemporary social policy considerations. A conscientious judge interpreting the Constitution will look to all of these sources in deciding cases and in explaining the rationale for his or her conclusions.” (Erwin Chemerinksy, The Case Against the Supreme Court [New York: Penguin, 2014], 331, Kindle.)

This is one of the best books on constitutional interpretation that I have read. I have only been able to summarize some of its principal arguments here. The details in this book are especially illuminating, both for constitutional scholars and general readers.

[Matthew Schreiner · Rating 4 out of 5]

I’m surprised that a book of this content was able to stay fresh while refusing to become a “pop history” sort of story. I think the arguments against originalism are succinct, well-thought-out, and tied really well into key examples of cases gone wrong. I always am a bit hesitant to enjoy a book where the author opens up with a clear agenda, but at no point in his argumentation did I find his dedication to his view doggedly stubborn. Chemerinsky admits to the flaws of non-originalism (primarily its lack of clear answer to some key constitutional questions) but defends them well.
I don’t think he makes a straw-man of originalism but I did feel as though he potentially exaggerated the benefits of a non-originalist view to make up for its lack of clarity. This would have been a five star book for me if he were able to make an argument that was stronger than the two claims of “well, originalists are just lying to themselves an non-originalists are honest” and “originalists miss out on precedent.” Both true to some extent, but fall a bit short of some of the stronger arguments to be made.

[Karen Adkins · Rating 5 out of 5]

Chemerinsky's a law professor, but this book is written for anyone with an attention span. And it's well worth your time; his demolition of originalism as a legal theory is incisive, extremely well sourced, and comprehensive. It's also depressing; the last chapter, which forecasts what a originalist-majority Court is likely to produce, is accurately titled "We Should Be Afraid."

[Ashley Y · Rating 5 out of 5]

This will be a longer review. First I’ll provide a book summary, then give my thoughts.

To state the thesis argument for this book, I would point to this quote: "Originalism is a fallacy. It is a rhetorical shield that conservatives use to pretend they are not making value judgments, when that is exactly what they are doing” (207).

This book is separated into nine chapters: The Rise of Originalism, The Allure of Originalism, The Epistemological Problem, The Incoherence Problem, The Abhorrence Problem, The Modernity Problem, The Hypocrisy Problem, In Defense of Non-Originalism, and We Should All Be Afraid.

First, Chemerinsky begins with history: Robert Bork and how originalism rose from a fringe theory to one that dominates the Supreme Court today.

Going through some arguments:

1. The epistemological problem arises from one funny conundrum: originalism does not even support originalism. Judicial review was not decided by the constitution but rather Marbury v. Madison.

2. Another problem: the ratifying states at the time did not even agree on one constitutional definition and journals from the time period show how ratifiers of the constitution were far from homogenous, they disagreed on many clauses and what they meant for the country. The author draws on his own experience with disagreements and gaps while drafting a document for the city of Los Angeles.

3. Brown v. Board of Education clearly would not be justified under originalism and yet even the most originalist justices recognize this flaw since segregation should be outlawed. If we went by practices at the time, lynching and other 'cruel and unusual' punishments would be legal since that framework has changed.

4. Originalists repeatedly revoke civil rights as not being part of the intent behind the Equal Protection Clause of the Fourteenth Amendment.

5. America has changed drastically since the time of the constitution. For example, the size now requires federal agencies and yet nothing about these federal agencies was enumerated in the constitution.

6. The Fourth Amendment: searches and seizures. Notions of private property were far different in the 18th century, and the constitution does not outline what to do in instances of wire tapping or surveillance - does this constitute an invasion of privacy if there was no physical intrusion?

7. The constitution talks about state sovereignty and immunity but conservative justices repeatedly invoke this protection to say that the state can never be prosecuted against even in violation of federal laws.

8. Roe v. Wade was overturned in the Dobbs decision under originalist frameworks. Similarly, due to the Commerce Clause, they argue that the constitution says nothing related to Congress's ability to regulate environment laws. child labor laws, and the Violence Against Women Act.

9. Conservative justices are adamant that the Establishment Clause of the First Amendment on religion is not about the separation of church and state but rather that church cannot coerce participation. They have also granted discrimination to a Catholic adoption center, permitting discrimination against same-sex couples but did not grant religious practice rights to Native Americans who use a outlawed drug for federal employees and petitioned because of their use in religious practices.

Obviously, I am forgetting some of the points Chemerinsky made, and I obviously have much more clarity around the second half of the book than the first half.

My opinion: these are all incredibly interesting theories, and I do hope to read many more books of legal scholarship (I think this is only my third or fourth). It was a bit difficult to understand at times since I don't have a J.D., but I definitely found some of his points very compelling. However, I am curious about the opposite of this. He ends the book on this very odd, vague notion of what Constitutional interpretation should be — I almost felt like this was deserving of a whole other book. In other words, if this is “wrong,” how would he define “right” jurisprudence?

Although I agreed with much of what Chemerinsky had to say from an emotional and civil rights perspective, and even a human rights perspective, I do wonder about this conservative claim to judge on certain issues expands beyond their constitutional powers (obviously, I understand his argument that this doesn't even apply to them, the religious clause of the First Amendment being one of many examples). Chemerinsky points to the difficultly of originalists' proposed ulterior solution — Congress and the passage of an amendment, specifically when a majority would never consent to the progress or protection of a minority — but I do wonder if there are solutions.

This whole thing makes me feel like ultimately checks and balances are flawed, and that constitutional formalism is hopeless because interests are competing; the law is necessarily antagonistic. Two competing constitutional interests he keeps coming back to are liberty and equality. But also privacy and government security. In Jeannie Suk Gersen's book, she talks about the conflict between female safety and male privacy in domestic violence.

Anyways, not to get all hopeless. This book was certainly enlightening. Even though it's only 207 pages, it's very dense and took me around six months to complete. I took a couple months on break.

[MIKE Watkins Jr. · Rating 5 out of 5]

I've read a variety of books that have covered this topic, and this is hands down the best book. Most of the ones I've read were boring and/or lacking somewhat in the persuasive writing department, this book fills in those areas for me.

Erwin Chernisky's ability to translate a "foreign language" aka "legalize" into layman's terminology is astonishing. The gist is that you can understand this book as long as you have a somewhat above-average critical thinking ability.


Chernisky provides the following definitions to help the reader navigate this book:

According to Chernisky, an originalist is one that embraces the following 3 "truths" :

(1) the meaning of the constitutional text is fixed at the time of ratification; (2) judges should give the meaning a primary role in constitutional interpretation; and (3) pragmatic concerns and consequences are not allowed to trump discoverable original meaning.”



Further, the summary of Chernisky's book is defined early on as this: "For most constitutional provisions, there is no “original meaning” to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate. In many areas where an original meaning can be discovered, it would lead to abhorrent results. Partly for this reason, originalist justices frequently abandon the theory when it does not yield the outcomes they want."


Pros of the book:

1. Chernisky first points out that originalism isn't original. According to Chermerinsky, Originalism was manifested as a counter theory to liberal decisions pushed by the Warren Court. He proceeds to point out how originalists deviate from their "truths" and instead rely on the same tools non-originalist utilize (social traditions, culture, what is best for today's society, ethics, etc).

One such example of deviation is found in the court's urgency to overturn affirmation action (which they did recently), claiming that the constitution is "color blind". Yet the 14th Amendment was used to introduce an array of laws that treated African Americans differently.


I love how Cherminsky took direct quotations from the originalist judges themselves that decided these cases before stating his rebuttals. And I love how Chermsky didn't take these quotes out of context, and instead took time to provide us with the full argument that said originalist made.
It's important to be fair to the other side and Cherminsky's book exemplifies this.


2. Cherminsky also makes a very compelling argument that, if originalists were as unbiased as they claimed when interpreting the Constitution, they would argue for the elimination of judicial review.

Judicial review is found nowhere in the Constitution. In fact, Cherminsky points out that the idea of judicial review was not discussed during the Constitutional Convention.


3. Cherminsky has a lot of experience creating laws (working with Congress) and arguing in various courts. As a result, Cherminsky was able to bring out just how many individuals are involved in the law-making process. This is why it's impossible to ascertain the "original intent" of various laws+the constitutions. Cherminsky's ability to bring this point out, because of his experience, made for an entertaining and educational read.

4. Cherminsky takes time, towards the end of the book, to bring out why non-originalism is a good thing. Non-originalism ensures that we, citizens, are provided with reasons as to why judges come up with decisions. Judges can't cop out with "that's the original meaning of the law/amendment" and leave it at that.

5. Cherminsky breaks down how, if we tried to stick to originalism, society would be worse off. Key SC rulings like Brown v Board of Education wouldn't exist if we attempted to stick to originalism. And important rights, such as the right to marry and our right to privacy, wouldn't exist with an originalist mindset. Change is needed in a society that is constantly changing and evolving. We drive airplanes now we don't ride horses anymore.




Cons:

1. I feel like Chermsky could have explored additional areas of law that are impacted by originalist thinking.

[David Williams · Rating 4 out of 5]

I was never a fan of constitutional originalism, but first realized what a sham it was upon reading Scalia's ruling in DC v. Heller. Here was one of our reputed best legal minds and strongest advocates for originalism ignoring much of the original intent of the second amendment, citing post-1789 history, and twisting himself into rhetorical knots to reach a pre-determined political outcome. Scalia's ruling was far from the neutral, dispassionate, and values-free judging that originalism purports.

If you suspect that originalism was designed to advance the Republican political agenda, insulate judges from criticism, and protect high-caste Americans' social and economic standing, this is the book for you. Chemerinsky concisely skewers the hypocrisies, inconsistencies, selectivity, and false academic rigor that hide under the robes of our wizened jurists.

If there is a weakness in the book, it is the absence of discussion about the rise of the Federalist Society, the empowerment of Leonard Leo, the grooming of law students, the influence of mega donors, and the general Republican strategy of ceding legislative power to the courts. Like it or not, conservatives have been remarkably patient and successful at injecting their political agenda into the court system.

[Sean Myers · Rating 5 out of 5]

A bit disappointing. 5/5 stars. Let me explain.

As someone with a law degree who has written about the partisan façade that is originalism, there was very little new, here. Yes, the examples that Chemerinsky draws out to make his point are far more exhaustive than what I would put together. Yes, Chemerinsky's way of classifying the problems that originalism creates was more adept than what I would have done. Yes, Chemerinsky's critique is far more authoritative than anything I'll ever write (who the hell am I, anyway?).

But I was hoping for something that I hadn't thought of before. One of the chapters, on how originalism is incoherent, seemed to present that novel idea. Unfortunately, after grappling with it, I'm worried that it doesn't hold up to scrutiny. It sure seems that good ol' Chemmy is saying that, under originalism, there would be no judicial review because it's not in Article III, but then that judicial review can be justified by the 9th Amendment, but only for unenumerated rights? So is judicial review constitutional or not?

That part could have been clearer.

The rest, though, is an authoritative, informative, and exhaustive takedown of the charade that is originalism - the in vogue method of "interpreting" the U.S. Constitution in an "apolitical" way, but that always guarantees conservative results.

If you were watching Gorsuch, Kavanaugh, and then Barrett get put on the Supreme Court and wondering why engaged people on the left and in the center were freaking out, this is the book to read. So far, the predictions that Chemerinsky makes in the last chapter have not only come true; they have been understated.

[Evie · Rating 5 out of 5]

If there’s one thing I hope to avoid in my career as a lawyer, it’s to be on the opposite side of Dean Erwin Chemerinsky in a constitutional argument. He systematically disproves every single argument for originalism, often with not one, not two, but a DOZEN examples of the fallacies it creates.

Imagine reading this and still believing in originalism? Couldn’t be me.

[Bobby Desmond · Rating 5 out of 5]

Sometimes, it’s helpful to write a review. Other times, it’s best to let the author speak for themselves: Originalism “is not a defensible theory at all. The historical record is so incomplete and inconsistent, and the choice of the level of abstraction so arbitrary, that on many issues justices and judges can find evidence to justify almost any result. On other questions, following originalism would lead to repugnant results. And on still others, originalists forsake it when it does not generate the conservative outcomes they favor. Originalism fails on its own terms to provide a constraint on judging.” “The remarkable willingness of originalists to abandon originalism when it fails to produce conservative results shows that the theory was never the restraint on the judiciary that its boosters promised. It is simply convenient rhetoric used by conservatives to make it seem that their decisions are a product of something other than their political views.” This book - a must read for anyone who cares to understand the scathing hypocrisy of conservative ideology in modern America - proves just that.

[Bill Gardner · Rating 5 out of 5]

Really enjoyed this explanation of originalism in interpreting the constitution through the lens of Supreme Court cases. Found the presentation to be exceptionally well done, fun to read and thoroughly engaging.

[Sam Sidle · Rating 3 out of 5]

I honestly really wanted to like this book but I think that it had a few major issues in its presentation of originalism. He was writing a book that would clearly only be read by a legal/legal adjacent audience but he consistently misrepresented what originalism actually is and the holdings/reasoning of certain cases. There’s a lot of really strong arguments against originalism; unfortunately, they’re not presented here.

[Peter Brackney · Rating 4 out of 5]

Comprehensive and accessible critique of the origins list theory that seems to dominate current jurisprudence in America. Readable for the lawyer and non-lawyer alike.

[Diogenes Grief · Rating 5 out of 5]

Dean of UC Berkeley’s School of Law, Dr. Chemerinsky lays waste to the hard-Right’s fan-fiction of “originalism”, “new originalism”, “living originalism”, “inclusive originalism”, and whatever newfangled ways the Federalist Society and its hypocritical disciples rebrand the idea, one that abhorrently fantasizes that our ancient legal works must be adhered to by the context of the times they were drafted, in 1787 and 1791, and the “meanings” of the (Caucasian, land-owning, wealthy) Founders who drafted them are unquestionable gospel. Has human civilization changed over the past 230 years? If you answered “yes!” to that question, congratulations! That means at some point in your life you were in an American History class and paid attention. We’re not getting around on horseback, or hunting for food with muskets, or reading books by candlelight, or taking weeks to cross an ocean by a multi-masted sailing ship; nor do we have Africans in chains toiling in fields, or Irish peasants scrubbing our floors as debt for the hellish voyage across the sea, or oppressed women burned at stakes for believing in autonomy. . . so read on because the GOP uses this philosophy to undermine society’s progressive, modernizing evolution towards true equality, fairness, and freedom for all while flagrantly highlighting their hypocrisy of the very ideals they claim to uphold.

Dr. Chemerinsky shows how this idea crept into the GOP’s mindset with an essay Robert Bork wrote in 1971, then blew up after the Supreme Court made its landmark decision to protect women’s right to an abortion, i.e., complete bodily autonomy, with Roe v. Wade in 1973. Chemerinsky deconstructs the philosophy of originalism and highlights its obvious hypocrisies, which is the current foundation for GOP politics on all things. Did the Founders imagine the metropolis or the automobile or the 30-round magazine of armor-piercing bullets or intercontinental nuclear missiles or billionaires or a worldwide web or satellites launched into the depths of outer space? If you answered “no!” to that question, another gold star for you, apt student of basic history. I’m so proud of you :)

The sad thing is this game of federal court-thrones has been won by the GOP for some time to come unless systemic changes are made. What was a radical concept in the 1980s is now mainstream, despite its glaring hypocrisies and obvious incoherence, thanks to the bloated-orange wannabe tyrant and his toddler sycophants in Congress, and of course super-powered by propaganda machines like Fox News and its ilk. Again, I heavily promote the Strict Scrutiny podcast to get a true accounting of the SCOTUS (https://crooked.com/podcast/how-the-f... https://crooked.com/podcast/the-origi...). As you now well know, SCOTUS and many federal courts helmed by paleo-conservative judges are doing their damnedest to roll the country back 50 years and more on many issues that we thought were finally, painfully settled after decades of pushing for civil rights and liberties, but with Citizens United v. FEC and some Justices being completely compromised by billionaires (https://www.propublica.org/series/sup... https://www.propublica.org/article/we...), this fight for the future is all too real. The more enlightened citizens who see originalism as the bald fallacy it is, the better voters they will be and the faster we can dethrone the cultists in the GOP and work towards a stronger, safer, equitable society that grants more freedom to more people. As Dr. Chemerinsky states several times throughout this book, “There is an inherent tension between liberty and equality”. I do not wish to live in a puritanical idiocracy awash in AR-15s. I hope you don’t wish to either.

Look, the fact that these ancient texts can be so easily interpreted from multiple perspectives makes them, to me, poor documents to base a society on. The same is very true for religious texts, purposefully obscure and open to interpretation over the centuries, as well as legal code that we’re all supposedly held accountable to as civilized human beings working and living within a national collective. Shouldn’t things be “carved in stone” and thereby inarguable over time, or modifiable to change with an evolving society? It’s easy to get into the daydreaming of just burning the old documents—the Constitution, the Bill of Rights, the Emancipation Proclamation, the Civil Rights Act—and just draft new official documents within our modern, forward-thinking context. Sadly, if you think systemic changes are easy, Chemerinsky paints a sobering picture with his role as chair of the Elected Los Angeles City Charter Commission in the late 90s. The then-existing charter was written in 1925 and needed obvious updating. It was anything but easy, and that was long before the corrosive, mind-altering Internet became a cesspool of disinformation and the GOP became a cult of power-mad MAGAts. The Right does not want society evolving; in fact, they seem to desire a devolving of society for their own personal gains. We’re already seen the overturning of Roe and the end of affirmative action. If they continue to get their desires, Chemerinsky looks though his scrying device to see a destruction of the Commerce Clause, which will essentially end all federal regulations and oversight, as well as the resurrection of blasphemy and sedition laws, the merging of Church with State at state levels (get ready to pledge allegiance to a flag and mandated company prayer-sessions with cheap Glocks holstered on everyone's hips), the freedom to discriminate based on personal biases, the ability for schools to be re-segregated based on classism, racism, and xenophobia, and many other deplorable, old-world practices that existed over the past two centuries. “A theory must be judged by its real-world consequences” (p. 113). The consequences could be abominable.

As a third-wave feminist, I believe we should have absolute equality for all to be whom they wish to be and do what they will with their bodies and biological material, free of oppression, free of racism and sexism, free of homophobia and xenophobia. I believe religion should be completely removed from politics and governance. I believe the federal government should regulate industries of every kind and have the dedicated agencies to do so, well-funded and well-staffed by highly paid, incorruptible civil servants, backed by science and focused on the future for all those generations yet born in a world that will be continuously warming for a good long while (https://www.npr.org/2023/10/27/120715...).

The Electoral College system should be aborted. One person, one vote. Corporations are not people. They need oversight, transparency, policing, and absolute accountability. Election Day should be a federal holiday. Money should be stripped from politics. Citizens United must be overturned.

I believe no one should be allowed to posses a military-grade firearm of any kind, that teachers should be the highest paid, best-trained civil servants in the country, that we policed everyone equally and everyone is held accountable for their actions—especially those with all the power. I believe billionaires should not exist and the filthy rich should pay their fair share of taxes so the rest of us can get a break and not have a quarter of our paychecks get taken away each week. I believe utilities should be publicly owned and transitioned to renewables asap. I believe quality healthcare is a human right and no one should have to pay for being hurt, or sick, or suffering.

We can move society forward faster if we work together to reign in greed and waste and poverty and fear, or we can squabble over petty pap within complete dysfunction and let the cards fall where they may. We get what we deserve when people fail to fight for others and act like evolved humans guided by humanism. As NBA superstar Dwyane Wade once said, “Justice will not be served until those who are not affected are as outraged as those who are.”

I want you to be outraged, and act upon that rage for the betterment of unfortunate others.


Further Reading:
“Myth America: Historians Take on the Biggest Legends and Lies about Our Past”, edited by Kevin M. Kruse and Julian E. Zelizer (2023)
“Under the Eye of Power: How Fear of Secret Societies Shape American Democracy” by Colin Dickey (2023)
“Poverty, By America” by Matthew Desmond (2023)
“The Nine” by Jeffrey Toobin (2007)
“The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic” by Steve Vladeck (2023)
“American Whitelash: A Changing Nation and the Cost of Progress” by Wesley Lowery (2023)
“On Disinformation” by Lee McIntyre (2023)
“Laboratories of Autocracy” by David Pepper (2022)
“Jesus and John Wayne” by Kristin Kobes du Mez (2020)
“Profiles in Ignorance” by Andy Borowitz (2022)



Playlist:
The Temptations’ “Ball of Confusion” from 1970, but I prefer Monster Magnet’s version from 2015, because things haven’t gotten any better (https://www.youtube.com/watch?v=wY3RI...)
Job For a Cowboy’s “Constitutional Masturbation” from 2009 (https://www.youtube.com/watch?v=dTGNc...)
Transgressive’s “Abort the Courts” from 2023 (https://www.youtube.com/watch?v=MVMgh...)
Bad Religion’s “New Dark Ages” from 2007 (https://www.youtube.com/watch?v=WWXLl...).
End Reign’s “Chaos Masked As Order” from 2023 (https://www.youtube.com/watch?v=qaxzT...)
God of Nothing’s “Mangled Truth” from 2022 (https://www.youtube.com/watch?v=n2aCt...)
Left to Die’s “The Illusion of Freedom” from 2014 (https://www.youtube.com/watch?v=p3ejs...)
Solitary’s “The Diseased Heart of Society” from 2017 (https://www.youtube.com/watch?v=feUef...)
House of Pain’s “Same As It Ever Was” from 1994 (https://www.youtube.com/watch?v=mZML5...)
Body Count’s “The Hate is Real” from 2020 (https://www.youtube.com/watch?v=tfBFj...)
Grip Inc’s “Ostracized” from 1995 (https://www.youtube.com/watch?v=lnJqj...)
Death By Stereo’s “Choose a Side or Open Wide” from 2020 (https://www.youtube.com/watch?v=fU6LF...)
Against the Grain’s “Killing Us Slowly” from 2019 (https://www.youtube.com/watch?v=wrDm4...)
Elephant Rifle’s “Every Billionaire is a Crime” from 2023 (https://www.youtube.com/watch?v=d-4nK...)
Fog of War’s “Victims of Progress” from 2015 (https://www.youtube.com/watch?v=Qt2N5...)
Eradicator’s “Read Between the Lies” from 2018 (https://www.youtube.com/watch?v=_LjQu...)
Machine Head’s “Stop the Bleeding” from 2020 (https://www.youtube.com/watch?v=pXiwr...)
Stick to Your Guns’ “More of Us Than Them” from 2021 (https://www.youtube.com/watch?v=ja7x7...)
No Fraud’s “Racism No More” from 2021 (https://www.youtube.com/watch?v=aXKio...)
Petrol Girls’ “Baby, I Had An Abortion” from 2022 (https://www.youtube.com/watch?v=UKGea...)

[Robin · Rating 4 out of 5]

A compelling overview of many Supreme Court decisions and the inherently flawed nature of originalism as a judicial argument today.

[Laura Petto · Rating 4 out of 5]

Not much new information for me, and not his most compelling book, but I find his prose so eminently readable. Like, yeah originalism sucks and I think most people going into this book would agree, the main unique argument in this book is that originalism is fundamentally circular and hides under a guise of false apolitical legitimacy.

[David Cook · Rating 5 out of 5]

BOOK REVIEW - Worse Than Nothing: The Dangerous Fallacy of Originalism, by Erwin Chemerinsky (09.28.23)

Ever since law school (83-86) when the Federalist Society was still in its infancy after being founded in 1982 I felt the originalism was an excuse for the justification of an legal philosophy that was defined more by conservative politics than history or philosophy. Chemerinsky has written a powerful, accessible, and convincing demolition of originalism. As the dean of Berkeley Law School he lays out why originalism is not only an unworkable method of constitutional interpretation but also a dangerous smokescreen for advancing conservative outcomes under the guise of judicial neutrality.

Chemerinsky argues that originalism is a fraudulent enterprise—not because history is unimportant, but because history is endlessly contestable, selective, and incapable of resolving modern constitutional disputes. He shows that those who invoke “the Framers’ intent” or “the public meaning of 1787” are usually engaged in cherry-picking sources that confirm their ideological preferences.

He emphasizes that originalism purports to be objective but in fact is an excuse for judges to mask political choices in the language of history. “What is sold as interpretive restraint is, in truth, interpretive license,” Chemerinsky insists, noting that many of the Supreme Court’s most controversial conservative decisions of recent decades—striking down campaign finance laws, limiting reproductive freedom, expanding gun rights—were justified under an originalist banner.

Beyond being intellectually dishonest, Chemerinsky stresses that originalism leads to outcomes profoundly at odds with modern democratic values. If the Constitution is read solely by the standards of the 18th century, then women’s rights, LGBTQ rights, racial equality, and many core liberties have little grounding. The book makes clear that such a method of interpretation would freeze American life in the prejudices of the Founding era.

Originalism cannot provide a consistent methodology; every major “originalist” opinion has competing historical authorities. It claims to constrain judges but actually empowers them, since judges get to decide which history to follow. It is anti-democratic, because it elevates the voices of a small group of men from the 18th century above the needs of a living, evolving nation. It provides cover for deeply partisan rulings while pretending to be neutral.

Worse Than Nothing is not only a masterclass in constitutional analysis but also a passionate defense of a living Constitution. It is a call to honesty in constitutional law and a warning that originalism—despite its popular veneer—is both untenable and unjust. For lawyers, students, judges, and citizens alike, this book is essential reading.

Quotes:

“Originalism is worse than nothing because it is a lie. It pretends to be a method of interpretation that decides cases in a neutral, value-free manner, when in fact it is nothing of the sort. It is a tool to impose political ideology under the guise of constitutional fidelity. The framers could not possibly have imagined our world, nor could they have intended to bind us to their own blind spots.”

“The most dangerous aspect of originalism is that it cloaks reactionary outcomes in the language of constitutional duty. By insisting that we must forever be ruled by the understandings of 1787, it denies the capacity of each generation to give life to the principles of liberty and equality. A Constitution that cannot evolve with society’s progress is not a charter of freedom, but a prison of the past.”

[Ryan Boissonneault · Rating 5 out of 5]

As an approach to constitutional interpretation, originalism, at first glance, seems perfectly reasonable, even the common sense option. Constitutional provisions, after all, were drafted by the framers with certain intentions; it’s only natural, then, to interpret those provisions according to these original intentions, or to the provisions’ original, commonly understood meanings. The only alternative approach, it seems, would be to allow a small group of unelected Supreme Court justices to “legislate from the bench” by reading into the Constitution their own values and policy preferences, which is entirely antithetical to democracy.

So the argument for originalism goes. The only problem is that it’s complete bullshit. And the reasons are fairly obvious, once you actually give the topic some thought. In fact, it would be surprising if you were not persuaded, by the end of this thoroughly researched and argued book, that originalism is both nonsensical and harmful. Here’s why.

Let’s start with what Chemerinsky calls the “epistemological problem” of originalism, the first and most substantial argument against this delusional theory. The author notes that, in almost all cases, “original intent” is impossible to find, or simply doesn’t exist in the first place. Let’s think about this for a moment.

In addition to the fact that the language of the Constitution is exceedingly vague—and that virtually the entire record of the Constitutional Convention consists only of James Madison’s notes (which may not be entirely reliable)—consider just how many people were actually involved in the drafting and ratification of each constitutional provision. As professor John Wofford wrote:

“In order to become part of the Constitution, the provision had to be accepted by the Philadelphia Convention or by the Congress, and then ratified by the states acting either through legislatures or through special conventions. Yet, to admit the relevance of such a large number of states of mind is to set forth a task virtually impossible to fulfill.”

The larger the number of people involved, the more difficult it becomes to determine common intent. And this on top of the fact that the most influential framers often disagreed with each other regarding various provisions (James Madison and Alexander Hamilton famously disagreed with each other on a host of crucial constitutional issues). So in cases of competing interpretations between the framers themselves, whose intent are we supposed to prioritize?

The upshot is that common intent or meaning is an illusion; the “originalist” must cherry-pick from an overwhelming amount of contradictory and conflicting information to find support for a decision he or she preferred all along. Originalism is therefore no different from non-originalism in its tendency towards “judicial activism”; the only real difference is that the originalist pretends to be value-neutral when this is in fact impossible.

This in itself should be enough to convince you of the fallacy of originalism; if original common intent doesn’t exist, or if it’s impossible to decipher, then one cannot be expected to ground decisions in it. But there are additional, serious problems. Briefly, they are:

(1) The incoherence problem, or the idea that following the principles of originalism would compel one to abandon it. Note that the framers themselves did not encourage or recommend an originalist approach to constitutional interpretation; if anything, they went out of their way to conceal their intent. As law professor Boris Bittker commented: “If it were true that the ratifiers wanted their intent to control the courts in deciding constitutional issues, they can be justly accused of gross negligence for failing to take even rudimentary steps to preserve their precious thoughts.” With how much thought was put into the Constitution, do we really think it was an oversight that they didn’t make their intentions clearer?

(2) The abhorrence problem, or the fact that originalist thinking results in morally reprehensible outcomes. One need only remind an originalist that his theory compels him to admit that Brown v. Board of Education—a landmark 1954 Supreme Court case in which the justices ruled unanimously that racial segregation of children in public schools was unconstitutional—was incorrectly decided. Eliminating racial segregation was never part of the original intent of the 14th amendment, but who is going to argue that the “equal protection clause” should not extend to the unconstitutionality of racial segregation? Any reasonable person must admit that the moral landscape changes over time, and that with it so should constitutional interpretation. But the originalist wants to turn a blind eye to anything that wasn’t considered an injustice in the 18th or 19th centuries, which is absurd and irresponsible.

(3) The modernity problem, or the obvious fact that original intent in 1787 is worthless in guiding decisions about, for example, the regulation of the internet. Here’s an example: When a case was being argued in the Supreme Court about the regulation of violent video games, Justice Antonin Scalia, an avowed originalist, insisted on questioning how the law under question could be reconciled with the original understanding of the First Amendment. Justice Samuel Alito interjected by saying, “I think what Justice Scalia wants to know is what James Madison thought about video games.” Relying exclusively on original intent is simply laughable in deciding cases involving modern issues.

(4) Finally, we have the hypocrisy problem, which is the most disturbing of all. It would be one thing if originalists had some intellectual and moral integrity and actually believed and abided by their own reasoning and theory. But this has historically not been the case. Originalists abandon their own theory when it does not produce the conservative outcomes they desire (see Shelby County v. Holder and Citizens United v. FEC). Citizens United is particularly egregious. The originalists of the court ultimately granted first amendment rights to corporations to prevent the government from restricting campaign financing. It shouldn’t require much elaboration to explain why the framers’ original intent in the 18th century could not have included the protection of rights for entities that didn’t yet exist. Yet the originalists had no qualms about inventing this right from the bench, which is precisely the activity originalism is supposed to prevent. And, as Chemerinsky noted, if the originalists were using a broader conception of first amendment rights to extend it to additional entities, then originalism becomes indistinguishable from non-originalism.

Essentially, originalism is purported to solve a problem that is impossible to solve: court decisions based on the political or moral values of the judges. All court decisions inevitably involve a trade-off of values; so while originalism pretends to be neutral, it is actually only a rhetorical device used to justify value-laden conclusions. And by ignoring other factors—history, tradition, moral progress, societal needs, precedent, and a host of other relevant factors—originalism produces decisions that are morally reprehensible and a bane to modern life.

Chemerinsky concludes the book by reminding us that we currently have two self-avowed originalists on a conservative majority Supreme Court, and that this should make us all very afraid. We’ve already seen just what an originalist Supreme Court is capable of, and it is unequivocally not going to be the granting or protecting of additional rights.

Verdict: This is an important book on one of the most important political topics of our time. While we may be stuck with the current Supreme Court justices for quite some time, we at least need to know the dangers we’re up against, rooted in a theory that is just as delusional as it is harmful. The author goes out of his way to present originalism in its strongest form before proceeding to expose its various contradictions, while taking the time to respond to originalist objections. The end-result is a kind of intellectual inoculation against dubious justifications for the questionable rulings that are inevitably to come.

[Joseph Stieb · Rating 5 out of 5]

An excellent book, and a model for how to communicate complex legal ideas to non-experts like me. EC's purpose in this book is to show the intellectual bankruptcy of originalism, which has now become the dominant strain of constitutional legal thinking on the right, with 3 open originalists on the court. Originalism is a modern version of formalism, the latter of which in broad strokes holds that judges' jobs are simply to apply the clear meaning of the law to individual cases the way that an umpire calls balls and strikes in a baseball game. Originalism, which is actually only about 50 years old, goes a little further: it argues that judges should apply the original intent or public meaning of the Constitution and that they should be guided ONLY by that calculation. They claim that originalism will help avoid "judicial activism," or justices applying their preferences and values to cases rather than the meaning of the Constitution. This leads them to a highly constrained view of the Constitution. For example, they would argue that because the designers of the 14th amendment did not have women in mind when they drafted this amendment, women or LGBT people should not be included in the equal protection or due process clauses (even though the plain text of the amendment protects all citizens).

In historical terms, originalism is really a conservative reaction to the Warren Court's rulings on race, gender, discrimination, defendents' rights, obscenity, and so on. But EC is less concerned with the history than the absolute incoherence of this idea. He levels a number of major arguments:

1. Original intention is extremely hard to demonstrate, as the framers of the Constitution or any other amendment or legislation often have conflicting and shifting ideas of what a given statute is supposed to do. Legislation/constitutional articles are often the result of compromises in which different parties have different ideas about the purpose of the legislation. Madison and Hamilton, among other framers, had very different ideas about enumerated v. implied powers, the role of a national bank, the necessity for a national military, etc, and their ideas shifted considerably. We have imperfect sources about the Constitution, and framers often misrepresented their thinking. The real point of the originalist focus on intent/meaning, EC argues, is to allow them to choose the evidence from context that supports their current-day policy preferences. On the establishment clause, for example, they focus on evidence that suggests a narrow view of separation of church and state as simply not establishing an official state religion or coercing others to practice/support a given religion rather than the considerable countervailing evidence that many Framers did not want any public support for religion and that they were quite concerned with the subtle pressures that favoring one faith over another would create. In short, originalists get the history they want, and then they get the policy they want.

2. Originalism chains us to past understandings of the law, morality, and social norms. The Constitution, and pretty much every amendment thereto, was drafted entirely by elite white men. That doesn't make it wrong per se, but a modern society with evolving mores and greater diversity should not be held back in all cases by what originally was meant in the Constitution or an amendment, even if that could be figured out at all. For example, the Constitution's framers could not have conceptualized modern issues relating to speech on the Internet, gender in the workplace, or electronic surveillance, and we cannot simply rely on the distant past to think seriously about those issues today.

3. Originalism is selectively applied by its own adherents because following it would lead to abhorrent outcomes. For example, it would require the reversal of Brown v. Board because the legislators who wrote teh 14th amendment were perfectly ok with racial segregation in schools; integrating schools was not the intent or public meaning of the amendment at the time. You can rinse and repeat this for a whole number of important 20th and 21st century cases, including Obergefell, because obviously the framers of the 14th amendment were not thinking about gay marriage at the time.

4. Finally, EC argues that originalism is a radical ideology posing as a conservative one. It has zero respect for precedent, which is supposed to provide stability to the law. Originalists believe that their allegience is to the Constitution only and are far more willing to strike down precedents, even in cases where the precedents have a lot of democratic legitimacy. Take Citizens United for example: most Americans were cool with and supported through their representatives limits on campaign funding, esp by shadowy private groups, and the distorting effects this can have on politics. But the justices nonetheless found a right to speech for corporations and permitted a revolution in campaign funding. That leads to another important critique: originalists have little concern for the impact of their rulings on real people, which should always be part of judicial reasoning. Lastly, an originalist Supreme Court that pursued its agenda in a determined way would roll back rights for women, racial minorities, labor, LGBT people, and many other groups who weren't being considered when legislation was being drafted. They claim that amendments to the Constitution can always be made to incorporate these groups, but this is a rather snide argument, as we all know that the bar for Constitutional amendments is incredibly high and unlikely to be met anytime soon in our polarized political system (just look at the ERA's fate).

EC makes a good case that originalism betrays the Court's obligation to act in a counter-majoritarian way, protecting those who are subject to unfair and discriminatory laws. It would also, I think, lead to a massive expansion of gov't power in the justice system, personal/family law, and other areas where the courts have carved out a wider sphere of privacy and legal defense rights for ordinary people. This is an effective warning call about an ideologically hollow but politically dangerous project that I hope people take seriously for its ability to considerably change how our society operates and to take many vulnerable groups backwards.

[Bill Morgan · Rating 3 out of 5]

The author does an excellent job demonstrating the hypocrisy of those, such as the late Justic Scalia and the current Justice Thomas, who claim to rely exclusively on originalism in interpreting the U.S. Constitution. However, the author fails to provide a convincing argument to rebut the claim that liberal justices rewrite the Constitution to suit their personal preferences of the moment. He correctly notes that if the current majority on the Supreme Court continue their current trajectory then many of the rights we have come to appreciate may no longer be protected, but he fails to adequately explain why unelected judges, rather than our democratically selected legislators, are the best source of rules in a democracy.

[M W · Rating 4 out of 5]

I think at some point (more or less from the "hypocrisy problem" chapter onwards) this ceases to be a book on Originalism as a concept and instead focuses on the specific conservative judges on the Supreme Court. Chemerinsky does make a convincing case that even those justices claiming to be originalists aren't really, and that Originalism is merely a fig leaf to justify decisions that correspond with their biases, being completely forgotten and left unmentioned whenever these don't align. In that sense Chemerinsky's arguments still have a lot of value, because they completely dismantle Scalia's point about some theory being better than nothing. If something is only used as post hoc justification, it barely qualifies as a theory. In fact, another justice just always voting against Scalia would have probably resulted in a more consistent theory that would have led to generally good outcomes. The most interesting anecdote in this line of argument actually appears very early on in the book when discussing the decision on privately owned firearms, that according to Chemerinsky is generally seen as the foremost example of Originalist argument. He makes the convincing case that the decision actually didn't follow directly from any Originalist thinking, but rather was just consistent and maybe even independent of it.

Tackling Originalism itself, I think the chapters on the incoherence problem are the strongest. Presenting the problem that a firm belief in the concept would inevitably lead to either abandoning Originalism or even judicial review entirely shows that it actually can never even advance to being a useful theory. That said, I think Chemerinsky too often takes the easy way out and argues against specifically a Borkian definition of Originalism. He essentially dismantles that particular view early on, both on a more theoretical level, but also through his personal experience drafting the LA charter. Courts trying to argue that the voters had some kind of specific interpretation when ratifying the charter when by his own admission even the drafters didn't just shows how this interpretative version of Originalism essentially comes down to pure guessing, or alternatively deception. The problem really is that after so quickly dealing with this definition, Chemerinsky still gets hung up on it afterwards, and a substantial amount of time is spent arguing against it.

To me, the chapters on the abhorrence and modernity problem are clearly the weakest.
Chemerinsky seems to think that Originalism leading to the overturning of morally good decisions is some kind of gotcha, but really what he implicitly criticizes here is not the Originalist argument, but rather the current difficulty in making constitutional amendments. But is it really in the purview of the Judiciary to rectify these problems of the Legislative, even if they exist? Chemerinsky essentially argues from an outcomes perspective, but doesn't really support his views with hard facts. In fact, by trying to argue this way, he essentially helps the conservative justices. If in their view the protection of the life of an unborn child is the most moral thing to preserve, weren't they completely justified in the Dobbs decision? Of course you can argue from a populist perspective that the myriad of referendums on abortion rights post-Dobbs have shown a general support for less restrictions, but this could then be countered by another argument that Chemerinsky often employs: the Supreme Court's duty to protect constitutional rights against the tyranny of the masses.
As for the modernity problem, except for when this intersects with abhorrence (as in the case of police surveillance), I don't think it is a real problem at all. Originalism (at least as Chemerinsky presents it here) doesn't claim some kind of completeness or universality, so the fact that you cannot apply it to every legal case doesn't really impact its value.

While the review sounds kind of negative, I still think this was a great read. Arguments are presented very clearly and in a structured manner. Other texts often try to do too much and in the end become entirely unfocused, the most you can criticize Chemerinsky for is that the book in the end focuses a bit too much on the case "there are no consistently originalist justices" instead of looking at the theory. But to his credit, if a legal theory has never been applied in a consistent manner, can it really be called one?

[Mac · Rating 4 out of 5]

Since Erwin Chemerinsky’s Worse Than Nothing may arouse heated debates on the substance, I’ll leave the argument to others. Some will agree as a framework for legal analysis, originalism is a diversion, a smokescreen for judges and justices to obscure their personal value decisions. It's worse than nothing. And others will contend just as adamantly that Chemerinsky’s “non-originalism” is a construct with no boundaries or substance so judges and justices can decide based on their personal values. It is indeed nothing. Let the arguments continue.

Note that Chemerinsky realizes the two sides are entrenched. He writes, “I have no illusions that this book will have any effect on those who believe in the originalist approach to constitutional law,” so he understands he will not change his opponents’ minds. That said, one can assess how well he crafts his arguments. So here, I’ll comment on Worse Than Nothing as rhetoric—specifically how persuasive is the author.

On the positive side, I’d say very persuasive. Chemerinsky gives numerous arguments against originalism, each with a general conceptual statement supported with details and references to Supreme Court cases. He explains how originalism has emerged and evolved over the years, and then he describes why the approach is so alluring (and so misleading). He provides a chapter on each of five problems, which again are carefully detailed. Sample problems: Strict originalism leads to abhorrent results in areas like race and individual rights. Originalism is not equipped to deal with the modern 21st century world. And originalism itself was not intended by the founders.

My point is Worse Than Nothing is thoroughly researched, a fully articulated exploration of the subject. It’s comprehensive, well organized, and clearly written. So, on the one hand, the book is persuasive; a rhetorical positive, and Chemerinsky had me frequently pausing to think deeply about the flaws of originalism throughout.

However, there is a negative. The book is so thorough, it wore me down. Argument after argument, case reference after case reference, reason after reason had a numbing effect, not a persuasive result. What’s more, the book is very repetitive. As Chemerinsky delves into each of the problems, he often repeats the originalists’ intention, and he repeatedly explains the evolution of originalism over time. After a while, the book goes from enlightening to heavy-handed.

So as a rhetorical work, Worse Than Nothing is at the same time both positive and flawed. While reading, I kept feeling that less would be more. A little more focus, a lot less repetition would make Worse Than Nothing even more convincing.

[Bryn · Rating 5 out of 5]

Today's Supreme Court is far more threatening to our modern way of life than many people are aware of--all through the lens of so-called "originalism." This book dismantles originalism as a sustainable judicial philosophy using modern cases to highlight his points. The problems with originalism are:

The Epistemological Problem
The Incoherence Problem
The Abhorrence Problem
The Modernity Problem
The Hypocrisy Problem

I think what troubles me most about our current Supreme Court is that I think, ultimately, regardless of whether I agree with their political leanings, is some of the Justices' seeming absence of a moral code that is consistent with the Constitution's and our nation's foundational principles of equality before the law. At the end of the day, our system does ultimately rely to some degree on the moral codes of our judges; as the book lays out, judicial philosophies are often just frameworks to justify the result the judges want, so we need to know the judges have a lodestar that is consistent with where we want to the country to go. Justice Thomas himself would not be in the position he is without affirmative action; I haven't seen or heard him acknowledge that tension in his own rejection of it. That Justice Kavanaugh could not respond in a measured manner during his confirmation hearings, suggesting that he doesn't have the even temperament to hear neutrally. That Justice Thomas has enriched himself and his family during his time on the Court through blantant gifts and handouts. That Justice Barrett could accept a nomination two weeks before the election when the same Senate had declined to give Merrick Garland one eight months earlier. These are examples for me of justices more hungry for power than for justice. To me, they're making the case ever-stronger to treat these nine historically sacred positions like we do other governmental positions of power--limited to some degree (I'm all for the 18-year term limit, with a new justice appointed every two years with no Senate discretion to nominate or not nominate at other times).

If you're still reading at this point and are troubled by some of what you've seen come out of the Supreme Court recently (and there's no reason to think the troubling decisions will do anything but accelerate), I highly recommend this book to give you a rational basis (pun intended for any con law students out there) for why you are feeling the way you are. The language is totally accessible for non-lawyers.

[Darth_Odan · Rating 2 out of 5]

Erwin Chemerinsky is a renowned Constitutional Law scholar and professor, which makes this book all the more disappointing. The book is guided more towards those who are not involved in the legal profession nor academics, therefore the book is geared towards the layman. What are Chemerinsky's main arguments against Originalism? Well, strawmen and cherry picking at their finest.

For example: The first amendment protects people's expression and the fourth amendment protects against unreasonable searches. The Founding Fathers didn't have telegrams or the internet, therefore under originalism anything goes and the government can do whatever it wants! To suggest otherwise is just hypocrisy on the part of an originalist! However, an originalist would most likely examine the telegram and e-mail and conclude that much like letters/mail and papers, these are written communications and these are protected against unreasonable governmental intrusion.

Chemerinsky also pretends that Congress doesn't exist or is somehow incapable of doing anything. "Originalism doesn't provide an answer because it expects Congress to write a law to solve an issue and that is worse than doing nothing! Congress is incapable of voting on regulations! Congress would never grant rights to minorities!"

Somehow Congress and the states via the amendment process granted suffrage to everyone. Somehow Congress passed the American's with Disabilities Act, Civil Rights Act, ect. which granted rights and protections to minorities. Somehow the European Parliament, which consists of more members, more languages, and ethnicities than Congress, is capable of approving regulations. But, as Chemerinsky laments "America is too big and complex to have Congress legislate on anything! Therefore judges need to update the Constitution for us."

The easiest way to summarize this book is "Originalism doesn't provide the outcomes I like, therefore it is bad. Originalism also postulates that the legislative branch should do its job. However, I cannot rely on the legislative branch to grant me the outcomes I like either. Therefore, we must rely on the judiciary to act and guarantee the outcomes I want."

All of this coming from a renown figure such as Chemerinsky is extremely disappointing. You would be better suited reading Former Justice Stephen Bryer books if you're interested in anything challenging originalism in a more serious manner.

[K De · Rating 5 out of 5]

Erwin Chererinsky's "Worse Than Nothing: The Dangerous Fallacy of Originalism" analysis of the so-called legal doctrine of "originalism" is a devastating critique. From the history of originalism's legal proponents like Robert Bork and Atonin Scalia to the current members of the conservative Supreme Court justices of Thomas, Alia, and Barrett shows through their writings and cecisions that "originalism" has inherent contradictions which are fatal to the theory. Including the changing goals of "founders' intent" to "public meaning" of the founders thinking as well as the recent SCOTUS rulings on "presidential immunity" and Chevon decision shows the political intentions of the radicals on the Supreme Court to "turn back" the clock to the 19th century whereas the nation has 21st century challenges which cannot be met by having a limited federal government hog tied by endless litigation by corporations and wealthy backed radical conservative legal firms.

Mr. Chererinsky takes apart the originalism argument both historically and how "reading the tea leaves" of the founders notes and essays are a exercise in futility because the historical record is not only incomplete and fragmentary but those notes left to history are by founders who have had their own agenda in putting actions and words to paper.

What Chererinsky fears for this nation and its legal system as epitomized by the Supreme Court are decisions which will strip the rights of Americans and the ability of government to function effectively. Once decisions are made then there will be a great outcry by those affected to limit or eliminate the ability of individuals to seek legal recourse for injustice experienced.

Highly recommended for one and all to be prepared for what will happen to many Americans.

[Stephen Harrison · Rating 4 out of 5]

This was a well-written and compelling book that argues that Originalism is misguided at best and dangerous to our way of life at worst. Originalism is basing decisions in Constitutional law on what the general public understood at the time it was ratified. It had been based on what the framers thoughts when they wrote the Constitution and its amendments, but when that proved untenable, they switched to the public understanding. Chemerinsky argues that: a) there is no way to know what either the framers or the public thought at the time because there was never a consensus. b) the framers never intended for the Constitution to be frozen in time but meant it to be a document that evolved with the times. c) if they practiced the policies they espouse, it would lead to "abhorent" outcomes, like overturning Brown v. Board. d) they don't actually practice the philosophy they espouse but use it for cover to implement their own values while pretending they are neutral.

He goes on to say that it is a danger to most people's way of life because at least three current SCOTUS justices avowedly support Originalism while three more conservative justices have said it influences their opinion. This suggests that they don't care about precedent if it goes against their understanding of the Constitution, which means they could overturn a lot of court cases that established important rights (Brown, Loving, Griswold etc.).

This is a very good book but it is sort of preaching to the choir. It is argued to excite people who are probably already against Originalism rather than trying to change the minds of people who support it. It is worth a read for anyone interested in the Supreme Court or Constitutional law.

[Robert Stevens · Rating 4 out of 5]

This book’s central goal is to show how the immense flaws of originalism as used by some Supreme Court justices and how originalism is often used as a shield to produce results that align with conservative ideology. This line of thinking is not a neutral methodology as it is often ignored when desired conservative results cannot be obtained using it. Using it can also yield abhorrent results if we only consider the 18th and 19th century contexts of the founding documents and subsequent amendments. Using it also ignores the modern contexts and situations that the founders never could have imagined.

It is clear that the constitution is a framework, not a detailed plan, that requires interpretation due the language used; however, there is an argument that judges shouldn’t create new rights and that policy and ideology should be out of judicial decision making, but value-free judging doesn’t really exist.

Something that I found highly convincing came when the author provided the example of the complexity and difficulty of understanding original intent of the framers with his experience drafting a new charter for LA because agreement amongst the framers on everything wasn’t and isn’t there. The same was true at the start of our country.

The author also makes it clear that the expanding of civil liberties granted by the Supreme Court never would have happened through the amendment process; however, these same liberties are at risk of being taken away as we saw earlier this year with the fall of Roe. The author also shows how the court is changing how it views cases such as religion and more.

I very much recommend this book.

[Kent Winward · Rating 4 out of 5]

This was a prescient book foretelling Dobbs v. Jackson Women's Health Organization (2022), but also an intriguing book, since Ketanji Brown employed originalist arguments on the 14th Amendment in her first questions from the bench.

The book does an excellent job of exposing "orginalist" versions of constitutional provisions as the philosophical cover they provide for ideological decisions. The fact that "originalist" theory would lead to a denial of constitutional judicial review is one of those paradoxes that only a lawyer could love and would be laughable, if only the law wasn't so much a matter of pain and death (See, Narrative, Violence, and the Law: The Essays of Robert Cover).

I could have used a whole chapter on the Ninth Amendment though: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This is a fascinating amendment that we never refer to and that seems to incorporate the philosophy of John Locke right into our constitution.

[Randall Russell · Rating 4 out of 5]

I found this book to be a somewhat dry (but it is after all, constitutional law), but also very interesting explanation of originalism and its impact on the Supreme Court. The author is very thorough and precise in his arguments, and they're buttressed with lots of examples illustrating how originalism is nothing but a legal charade. The key point the author makes is that originalism is no less flawed than any other methodology for interpreting the constitution, and contrary to what the conservative Supreme Court justices and their supporters maintain, the conservatives are making their judicial decisions based on their personal values, just like the supposedly "activist" and more liberal justices.
The author illustrates this with a variety of examples that show the conservative justices only follow originalism when it provides the outcome they desire, and then they ignore it when it doesn't support their desired outcome. So, overall I'd highly recommend this book if you're interested in understanding what's wrong with Originalism, and how dangerous it is, as it allows conservatives to pretent they're not imposing their values on everyone else, when that's exactly what they're doing. Unfortunately, since this book was published in 2022, the Supreme Court has overturned Rove v. Wade, confirming much of what the author says in the last chapter of the book.

[Jacob · Rating 4 out of 5]

I felt inspired to learn more about the topic after seeing Stephen Breyer speak recently. I skimmed a few sections but overall, I thought this book was a great overview of the shortcomings of originalism. The theory claims to provide a more narrow reading of laws, focusing on what the drafters or public understood the goals to be at the time and avoiding “legislating from the bench”. However, this has a few issues:

1) there is not always a single goal or understanding at the time of passage to be ascertained, and everyone has a different approach in which historical sources are considered in doing so
2) it’s not well-suited to respond to a society that is always changing. For example, framers had nothing to say about digital surveillance tools, but we need a way to evaluate them
3) most importantly, its proponents abandon it when it does not lead to the outcomes they want

Instead, Chereminsky views originalism as a rhetorical device used to add an air of objectivity while casting those on the other side as applying their own ideals. Originalists are only calling balls and strikes!
Of course, this is a fallacy. Judges need to navigate ambiguity and weigh competing interests all the time, so we might as well be honest about it.