U.S. Supreme Court,
Constitutional Law
Jan. 25, 2011
Rejecting Originalism
Originalism is a flawed constitutional doctrine that leads to unacceptable results. By Erwin Chemerinsky of UC Irvine School of Law.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Justice Antonin Scalia recently remarked in an interview in California Lawyer that discrimination against women never violates equal protection because the Framers of the 14th Amendment never meant to protect them. The comment attracted national media attention, with the reaction being mostly of the "there he goes again, saying something provocative." But the response should be that this shows why Scalia's originalist philosophy is unacceptable.
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