Progressives Still Have Nothing Against Originalism – The American Spectator | USA News and Politics

The full title of Erwin Chemerinsky s book says it all: Worse Than Nothing The Dangerous Fallacy of Originalism. Chemerinsky, the dean of Berkeley Law School, tells readers that the doctrine of constitutional interpretation now favored by a majority of the Supreme Court is a phony legal theory concocted to allow radical judges to impose their right-wing values. The title also hints at an admission: Chemerinsky has nothing better to offer as an alternative.

Reviewing early excerpts published in the Atlantic, Adam Carrington of Hillsdale College exposed surprising weaknesses in Chemerinsky s analysis. It is now clear that Carrington s conclusion extends to the work as a whole: Chemerinsky s book does little to undermine originalism s strength as the best approach to upholding the Constitution and preserving the rule of law.

In addition to the points noted by Carrington, Chemerinsky s book contains other significant flaws, the most striking of which is his analysis of Brown v. Board of Education. According to Chemerinsky, that 1954 Supreme Court decision, which held that public school segregation violated the Equal Protection Clause, offers one of the most powerful and irrefutable arguments against originalism because originalism tells us Brown v. Board of Education was wrongly decided. This conclusion, however, is not supported by any originalist statements; it is based solely on what Chemerinsky believes an originalist court would have said if the justices had adhered to originalism. But one need not speculate originalists consistently support the result in BrownRutan v. Republican Party (1990), for example, Justice Antonin Scalia defended Brown and asserted that the 13th and 14th Amendments, when read in combination, leave no room for doubt that laws treating people differently because of their race are invalid.

via spectator.org