Book Review

JurisdictionUnited States,Federal
CitationVol. 36 No. 3 Pg. 44
Publication year2023
Book Review
Vol. 36 No. 3 Pg. 44
Utah Bar Journal
June, 2023

May, 2023

Worse Than Nothing:

The Dangerous Fallacy of Originalism

by Erwin Chemerinsky

Reviewed by J. Frederic Voros, Jr.

I embraced originalism in 1978. As a third-year law student I devoured Raoul Berger's book Government by Judiciary. It argued that Brown v. Board of Education was wrongly decided - and fundamentally undemocratic - because the framers of the Fourteenth Amendment had never intended to integrate public schools.

Not everyone was persuaded. Nine years later, the Senate rejected Supreme Court nominee Robert Bork, a supremely qualified but thoroughly originalist nominee, on a bipartisan vote of 58-42.

Since then, originalism has moved from fringe to mainstream. Three of the nine sitting Supreme Court Justices are self-proclaimed originalists; three others often frame their analysis in originalist terms.

In Worse Than Nothing: The Dangerous Fallacy of Originalism, Berkeley Law School Dean Erwin Chemerinsky pushes back. His stated goal is "to explain as clearly as I can why originalism is an emperor with no clothes," by which he means that it allows conservative justices "to pretend they are following a neutral theory when in reality they are imposing their own values."

He begins by describing the allure of originalism. An ideologically neutral interpretative theory that ties outcomes to fixed, determinate textual meaning adopted by a supermajority of Americans, thereby preventing Supreme Court Justices from imposing their own subjective value choices, does have considerable allure, at least in theory.

Worse Than Nothing: The Dangerous Fallacy of Originalism

by Erwin Chemerinsky

Yale University Press (2022)

264 pages Available in hardcover, e-book, and audiobook formats

In practice, as Dean Chemerinsky's devastating critique demonstrates, originalism delivers on none of these promises.

Chemerinsky addresses five problems with originalism: the epistemological problem, the incoherence problem, the abhorrence problem, the modernity problem, and the hypocrisy problem. He closes with a defense of the living constitution approach and a warning for the future.

By "the epistemological problem" Chemerinsky means that the original understanding of a provision is often unknowable. The search for a single meaning leads to multiple possible meanings.

Take the Second Amendment. From 1791 until 2008, the Supreme Court interpreted the...

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