The Fraud Of Judicial Originalism | Erwin Chemerinsky | TMR

Sam and Emma host Erwin Chemerinsky, Dean of the University of California, Berkeley Law School, to discuss his recent book Worse Than Nothing: The Dangerous Fallacy of Originalism.

Erwin Chemerinsky joins as he walks through the popularization of “originalism” coming out of the failed nomination of Robert Bork to the Supreme Court in 1987, exploring what originalism is, and how it relies on reverse engineering the opinions of our “framers” from the perspective of whatever “originalist” is making the argument. After parsing through the history of originalism, Erwin takes on the five central problems with originalism, beginning with the epistemological problem of being unable to actually determine the intent of countless framers involved in constructing our constitution, the incoherence problem of the framers’ rejection of a static view of the constitution grounded in the exact (and incredibly vague) words they put forward, the abhorrence problem of what originalism would actually result in (segregation, sex-based discrimination, etc), the modernity problem of how drastically the technologies and infrastructure of our era have departed from that of the 18th Century, and, lastly, the hypocrisy problem presented by the obvious inconsistent application of originalism by any and all originalists. Wrapping up, Professor Chemerinsky tackles why originalism has grown so prevalent in constitutional discourse, the massive conservative project that brought it to this point, and how the left can push back.

Buy Worse Than Nothing: The Dangerous Fallacy of Originalism here: https://yalebooks.yale.edu/book/9780300273984/worse-than-nothing/

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