Worse Than Nothing: The Dangerous Fallacy of Originalism

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.

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. Chemerinsky does a masterful job of breaking down cases, such as commerce clause and race cases. 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 meaning" 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 also 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.

A clear and persuasive analysis of Originalism. Everything Dean Chemerinsky predicted -- and feared -- came true shortly after the book was published. The Dobbs dissent by Justices Breyer, Sotomayor and Kagan, laying out the real-life consequences of that benighted theory of judging is a perfect epilogue to "Worse than Nothing ."States, as predicted, are actually enacting laws that criminalize a woman's traveling out of state to obtain an abortion, as well as the actions of all who help her,-and that's very hard to swallow in America. And beware -- as Chemerinsky also predicts, and the Dobbs dissenters explicitly say, "no one should be confident that this majority is done with its work."This is an excellent book on a previously little-known subject, and although I am a lawyer, you don't have to be one to understand it and be enriched by it.. And you should.Richard C. Cahn'

Even if you're not into American law, specifically constitutional law, this book serves as an excellent backgrounder to current issues that continue to divide the American people that make the issues more understandable from multiple points of view. The book is very helpful is describing the current make-up of the US Supreme Court, linking the judges, their ideologies and biases, to how they interpret the Framer's words to discover intent and meaning. Even as a Canadian student of law, I find the author's explanation of how the American Constitution is (or should be) interpreted fascinating. I can find no parallel in the Canadian context. My only comment is that the book should have included a list, along with a brief description and chronology, of ALL the Amendments (23, I think) in an appendix. While most readers, even non-Americans, have knowledge of the Constitution and its wording, not all would know what all the Amendments are. Since the book and the author's argument against 'originalism' refers to many of the Amendments, being able to refer to an appendix would be immensely helpful. Someone should do the same with the Canadian Constitution and its Charter of Rights and Freedoms!