Book SummaryWorse Than Nothing, by Erwin Chemerinsky

1-Page Summary1-Page Book Summary of Worse Than Nothing

Originalism's Growth and Prominence

Originalism Emerged to Counter Warren Court Rulings

This section explains how originalism developed in response to what its proponents perceived as excessive "judicial activism" by the liberal Warren Court. Originalists thought that the Warren Court had strayed too far from the Constitution's original meaning in its landmark rulings expanding individual rights and protections.

Originalism Restrains Judges, Unlike Warren Court's Activist Rulings

Originalism, as Chemerinsky explains, emerged as a critique of the liberal Warren Court's decisions, which originalists deemed "activist." According to originalists, the Warren Court illegitimately expanded judicial power and reinterpreted constitutional principles according to the justices' personal political preferences. They believed that decisions in a democracy should be made by elected officials except in the limited circumstances where the Constitution explicitly removes issues from majoritarian rule. Chemerinsky details the originalist argument that when judges stray from the framers' intended interpretation of the Constitution, they usurp the role of democratically elected representatives.

Originalism's goal is to limit judicial leeway, preventing judges from applying their own values and instead adhering to the fixed meaning established by the Founding Fathers. Chemerinsky points to Robert Bork as an early champion of this view, who warned that when judges deviate from intention as their guide, they start to create laws that reflect a societal plan for Americans. This idea of judges as neutral interpreters bound by original intent serves as the foundation for originalism's claims of objectivity and legitimacy.

Practical Tips

• You can develop a habit of critical reading by analyzing opinion pieces in newspapers. When you come across an article, identify the author's main argument and assess whether they are interpreting facts to fit their personal views or presenting them objectively. This practice sharpens your ability to discern bias and understand the importance of sticking to original principles, much like judges should adhere to constitutional principles without personal reinterpretation.
• Enhance your civic engagement by writing to your representatives about issues you believe should be constitutionally addressed rather than left to majoritarian rule. Research issues that are currently being debated in your community or at the national level. If you find an issue that you think should be explicitly covered by the constitution to avoid majoritarian decision-making, draft a letter to your elected officials explaining your stance and suggesting a constitutional amendment or clarification. This proactive approach allows you to participate in shaping the democratic process in line with originalist thinking.
• You can explore the principles of originalism by starting a book club focused on the Federalist Papers and other historical documents. By reading and discussing these foundational texts, you'll gain a deeper understanding of the context in which the U.S. Constitution was written. This can help you appreciate the originalist perspective and how it might apply to current legal debates.
• You can analyze the original intentions behind local laws by researching the historical context and public debates at the time they were passed. Understanding the framers' intentions requires looking at the historical documents, newspaper articles, and transcripts of debates that were available when the law was created. For example, if your city has a curfew law, you might look at city council meeting minutes from when the law was enacted to understand the concerns and intentions of that time.
• You can track judicial decisions to understand the impact of judges on lawmaking by creating a simple spreadsheet. Start by selecting a few recent, high-profile court cases. For each case, note the original intent of the law in question, the judge's ruling, and any societal changes that result. This will give you a clearer picture of how judicial interpretation can shape society.
• Develop a game night with friends where you role-play historical figures making modern decisions. Each person picks a figure from history and, when faced with a contemporary issue, must argue their decision based on the historical context and original intent of the figure they represent. This activity not only makes for an entertaining evening but also sharpens your ability to understand and apply original intent in everyday situations.

Originalism Rises as Supreme Court Justices and Conservative Legal Groups Support the Concept

Over time, originalism gathered traction beyond legal scholarship and entered mainstream legal and political discourse. Chemerinsky highlights Edwin Meese, who served as Attorney General under Ronald...

Worse Than Nothing Summary Originalism's Shortcomings

Chemerinsky devotes several chapters to dissecting the shortcomings in originalism. He identifies various overlapping problems with the theory, ranging from its difficulty in establishing a stable and coherent meaning to its potential for yielding unacceptable outcomes.

The Epistemological Problem

Chemerinsky labels this the "epistemological problem," emphasizing the inherent difficulty in ascertaining what constitutional provisions originally meant. Multiple sources, differing intentions from the Framers, and incomplete historical records make it challenging to definitively establish a single, authoritative interpretation.

"Original Intent" or "Meaning" of Constitutional Provisions Indeterminable due to Multiple Drafters and Ratifiers

Chemerinsky argues that determining the "original public meaning" or "intent" behind constitutional provisions is impossible because of the multiple individuals who contributed to their creation and approval. He uses his own experience serving on a charter commission for LA to demonstrate the difficulty of ascribing intent to a group comprised of individuals with varying views and motivations. He explains how even weeks after voting...

Worse Than Nothing Summary The Argument for Not Using Originalism

Chemerinsky concludes by advocating for non-originalism as a more honest and justifiable approach to constitutional interpretation. He argues that the Constitution is best understood as a living document that evolves with time and should be interpreted through consideration of diverse sources, not solely through the lens of a fixed original meaning.

Interpretive Approaches Beyond Originalism Value Diverse Sources

Chemerinsky explains that unlike originalism's narrow focus, non-originalist methods embrace a broader approach, drawing insights from multiple sources beyond the text and original meaning of a constitutional provision. These sources include: post-ratification history and practices, traditions, precedent, foreign law, as well as modern social needs and values.

Enables Constitutional Change and Relevance

Chemerinsky argues that this expansive perspective allows interpreting the Constitution in a way that keeps it relevant to present-day concerns and responsive to a changing world. It permits the interpretation of constitutional articles to evolve through judicial interpretations, adapting to account for changes in social values, technology, and society's...

Worse Than Nothing Summary The Consequences of Originalism's Dominance

Chemerinsky ends with a sobering prediction: given the conservative supermajority now on the Supreme Court, originalism will dominate constitutional interpretation in the years ahead and could have profound consequences for the rights and liberties of individuals as well as the balance of power between the federal government and the states.

Conservative Supreme Court Majority's Originalism Could Impact Privacy, Autonomy, Congressional Power, and the Establishment Clause

Chemerinsky asserts that the existing Supreme Court majority, which is conservative and emboldened by originalist principles, is poised to bring about significant and potentially harmful changes to U.S. constitutional jurisprudence. He highlights three areas where the Court's originalist-guided interpretation could erode established rights and protections:

Originalism Endangers Decisions on Reproductive Rights, Marriage Equality, and Liberties

Chemerinsky warns that originalism poses a direct threat to Roe versus Wade. The Court now has a minimum of five votes to overturn Roe, ending the constitutional protection for abortion and leaving the matter to political procedures. Chemerinsky notes that...