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.
