Worse Than Nothing: The Dangerous Fallacy of Originalism in The Majority Report Podcast Goodreads Group

Aug 26, 2025 M W rated it really liked it · review of another edition

Shelves: 2025, audiobook

I think at some point (more or less from the "hypocrisy problem" chapter onwards) this ceases to be a book on Originalism as a concept and instead focuses on the specific conservative judges on the Supreme Court. Chemerinsky does make a convincing case that even those justices claiming to be originalists aren't really, and that Originalism is merely a fig leaf to justify decisions that correspond with their biases, being completely forgotten and left unmentioned whenever these don't align. In th I think at some point (more or less from the "hypocrisy problem" chapter onwards) this ceases to be a book on Originalism as a concept and instead focuses on the specific conservative judges on the Supreme Court. Chemerinsky does make a convincing case that even those justices claiming to be originalists aren't really, and that Originalism is merely a fig leaf to justify decisions that correspond with their biases, being completely forgotten and left unmentioned whenever these don't align. In that sense Chemerinsky's arguments still have a lot of value, because they completely dismantle Scalia's point about some theory being better than nothing. If something is only used as post hoc justification, it barely qualifies as a theory. In fact, another justice just always voting against Scalia would have probably resulted in a more consistent theory that would have led to generally good outcomes. The most interesting anecdote in this line of argument actually appears very early on in the book when discussing the decision on privately owned firearms, that according to Chemerinsky is generally seen as the foremost example of Originalist argument. He makes the convincing case that the decision actually didn't follow directly from any Originalist thinking, but rather was just consistent and maybe even independent of it.

Tackling Originalism itself, I think the chapters on the incoherence problem are the strongest. Presenting the problem that a firm belief in the concept would inevitably lead to either abandoning Originalism or even judicial review entirely shows that it actually can never even advance to being a useful theory. That said, I think Chemerinsky too often takes the easy way out and argues against specifically a Borkian definition of Originalism. He essentially dismantles that particular view early on, both on a more theoretical level, but also through his personal experience drafting the LA charter. Courts trying to argue that the voters had some kind of specific interpretation when ratifying the charter when by his own admission even the drafters didn't just shows how this interpretative version of Originalism essentially comes down to pure guessing, or alternatively deception. The problem really is that after so quickly dealing with this definition, Chemerinsky still gets hung up on it afterwards, and a substantial amount of time is spent arguing against it.

To me, the chapters on the abhorrence and modernity problem are clearly the weakest.
Chemerinsky seems to think that Originalism leading to the overturning of morally good decisions is some kind of gotcha, but really what he implicitly criticizes here is not the Originalist argument, but rather the current difficulty in making constitutional amendments. But is it really in the purview of the Judiciary to rectify these problems of the Legislative, even if they exist? Chemerinsky essentially argues from an outcomes perspective, but doesn't really support his views with hard facts. In fact, by trying to argue this way, he essentially helps the conservative justices. If in their view the protection of the life of an unborn child is the most moral thing to preserve, weren't they completely justified in the Dobbs decision? Of course you can argue from a populist perspective that the myriad of referendums on abortion rights post-Dobbs have shown a general support for less restrictions, but this could then be countered by another argument that Chemerinsky often employs: the Supreme Court's duty to protect constitutional rights against the tyranny of the masses.
As for the modernity problem, except for when this intersects with abhorrence (as in the case of police surveillance), I don't think it is a real problem at all. Originalism (at least as Chemerinsky presents it here) doesn't claim some kind of completeness or universality, so the fact that you cannot apply it to every legal case doesn't really impact its value.

While the review sounds kind of negative, I still think this was a great read. Arguments are presented very clearly and in a structured manner. Other texts often try to do too much and in the end become entirely unfocused, the most you can criticize Chemerinsky for is that the book in the end focuses a bit too much on the case "there are no consistently originalist justices" instead of looking at the theory. But to his credit, if a legal theory has never been applied in a consistent manner, can it really be called one? ...more

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