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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.

Tabla de contenidos provista por Syndetics

• Preface(ix)
• Chapter 1 The Rise of Originalism(1)
• Chapter 2 The Allure of Originalism(25)
• Chapter 3 The Epistemological Problem(44)
• Chapter 4 The Incoherence Problem(75)
• Chapter 5 The Abhorrence Problem(92)
• Chapter 6 The Modernity Problem(115)
• Chapter 7 The Hypocrisy Problem(139)
• Chapter 8 In Defense of Non-Originalism(166)
• Chapter 9 We Should Be Afraid(186)
• Notes(209)
• Acknowledgments(239)
• Index(241)

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CHOICE Review

As its title suggests, this thorough, if overstated, attack on originalism by a Berkeley law professor and prolific author points to weaknesses in a mode of constitutional interpretation originated by Robert Bork and often espoused by conservative jurists, including three current Supreme Court justices. Originalists, initially called interpretivists, advocate interpreting the Constitution through the publicly stated intentions of those who wrote and ratified it. Chemerinsky holds that the allure of minimizing the will of unelected judges is chimerical. Epistemologically, he believes that it is often impossible to ascertain such intent or square it with the framers' own thoughts on constitutional interpretation. He further charges that originalism frequently has abhorrent results and fails to accommodate developments that modern technology and the complexities of an advanced industrial society bring about. Moreover, originalism's advocates are unclear about the level of specificity with which to apply constitutional principles and sometimes ignore originalism altogether. Chemerinsky's own indeterminate, non-originalist principles, resembling living constitutionalism and based on legalist realism critiques of legal formalism, would focus judicial constitutional judgments on "history, tradition, precedent, foreign law, [and] modern social needs" (p. 181). Summing Up: Recommended. Advanced undergraduates through faculty and general readers. --John R. Vile, Middle Tennessee State University

Notas de autor provistas por Syndetics

Erwin Chemerinsky is Jesse H. Choper Distinguished Professor of Law and Dean of the Berkeley Law School, University of California at Berkeley. He is the author of fifteen books, including Free Speech on Campus and Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable.