Book Recommendation: "Worse than Nothing" by Erwin Chemerinsky

Review and Synopsis of "Worse than Nothing" by Erwin Chemerinsky

Review by Robert Steiner MS, M.Ed, JD 

In "Worse than Nothing: The Dangerous Fallacy of Originalism," Erwin Chemerinsky, a prominent legal scholar and professor at the University of California, Irvine, presents a critical examination of the originalist approach to constitutional interpretation. Chemerinsky argues that originalism, which emphasizes interpreting the Constitution based on the intent or understanding of its framers at the time of its drafting, is fundamentally flawed and ultimately detrimental to the constitutional framework of the United States.

Chemerinsky's critique is structured around several core arguments. He contends that originalism fails to account for the evolving nature of society and the law, often leading to unjust and outdated interpretations of the Constitution. The book explores how originalist interpretations can result in legal doctrines that are inconsistent with contemporary values and the practical needs of modern society.

Review

Erwin Chemerinsky's "Worse than Nothing" provides a robust and incisive critique of originalism, a judicial philosophy that has gained substantial traction among some conservative legal scholars and judges. Chemerinsky's arguments are well-grounded in both historical and contemporary legal theory, presenting a compelling case against the notion that the Constitution should be interpreted strictly according to its original meaning.

One of the key strengths of the book is Chemerinsky's clear and systematic dismantling of originalism through various criticisms. He effectively demonstrates that originalism is not only impractical but also potentially harmful to the principles of justice and equality. His writing is accessible yet scholarly, making complex legal arguments understandable to both legal professionals and lay readers.

Chemerinsky’s arguments are particularly powerful when he addresses the ways in which originalism can lead to legal decisions that are out of step with modern values and societal needs. By illustrating how originalist interpretations might apply outdated or irrelevant principles to contemporary issues, Chemerinsky highlights the potential for originalism to undermine the flexibility and adaptability of constitutional law.

Criticisms of Originalism

1. The Epistemological Problem

   - Definition: This issue revolves around the challenge of accurately determining the original intent or understanding of the Constitution’s framers.

   - Criticism: Chemerinsky argues that the historical record is often incomplete or ambiguous, making it difficult, if not impossible, to ascertain the precise intentions of the framers. The lack of clear, uniform understanding among the framers further complicates attempts to adhere to a singular "original meaning."

2. The Incoherence Problem

   - Definition: This problem addresses the internal inconsistencies within the originalist framework itself.

   - Criticism: Chemerinsky suggests that originalism can lead to contradictory interpretations when applied to different constitutional provisions. The attempt to interpret the Constitution based on the framers' intent often results in conflicting outcomes, undermining the coherence and consistency of legal principles.

3. The Abhorrence Problem

   - Definition: This issue pertains to the moral and ethical implications of adhering strictly to historical understandings that may be morally repugnant by today’s standards.

   - Criticism: Chemerinsky points out that some originalist interpretations might uphold principles or practices that are now seen as deeply unjust or discriminatory. For instance, originalist approaches might inadvertently support outdated views on issues such as slavery or gender equality, which modern sensibilities find abhorrent.

4. The Modernity Problem

   - Definition: This problem concerns the difficulty of applying historical interpretations to contemporary issues that the framers could not have anticipated.

   - Criticism: Chemerinsky argues that originalism fails to account for the rapid social, technological, and cultural changes that have occurred since the Constitution was drafted. This disconnect can lead to interpretations that are irrelevant or impractical in the context of modern society.

5. The Hypocrisy Problem

   - Definition: This issue relates to the selective application of originalist principles in ways that do not consistently honor the purported intent of the framers.

   - Criticism: According to Chemerinsky, some advocates of originalism apply selective historical interpretations to support their views while ignoring other aspects of the framers' intent. This selective application can be seen as a form of intellectual dishonesty, undermining the credibility of originalist arguments.

Conclusion

"Worse than Nothing" is a powerful critique of originalism, highlighting its various shortcomings and potential harms. Chemerinsky’s analysis is thorough and well-argued, presenting a strong case for why originalism may not be the most effective or just approach to constitutional interpretation. By addressing the epistemological, incoherence, abhorrence, modernity, and hypocrisy problems, Chemerinsky effectively challenges the foundation of originalist thought and advocates for a more flexible and contextually aware approach to constitutional law.

For further information or to discuss any legal matters, please contact Attorney Robert Steiner at (205) 826-4421 or via email at robert@steinerfirm.com. Whether you have questions about this article or need personalized legal advice, he is available to assist you.