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Nevilledog

(50,687 posts)
Tue Sep 6, 2022, 11:28 PM Sep 2022

Erwin Chemerinsky: Even the Founders Didn't Believe in Originalism



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"The original meaning of the Constitution," Erwin Chemerinsky writes, "did not embrace originalism as the method for interpreting the document. Originalism then self-destructs."

theatlantic.com
Even the Founders Didn’t Believe in Originalism
To follow the Framers’ ideas about the Constitution means abandoning their understanding of it.
7:49 PM · Sep 6, 2022


https://www.theatlantic.com/ideas/archive/2022/09/supreme-court-originalism-constitution-framers-judicial-review/671334/

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https://archive.ph/gTblw

Originalism has reached great heights since it first came about in the 1970s as an obscure legal theory. Most current Supreme Court justices use originalism in their legal reasoning. Adherents believe that the Constitution has a fixed meaning and that it should be interpreted as it would’ve been back in the 1700s. Critics have made many compelling arguments against originalism, noting that it lends itself to a selective reading of history and that determining the Founders’ intent is nearly impossible.

But even where original intent can be known, the Framers likely did not want their views to control constitutional interpretation. Nothing indicates that the original meaning of the Constitution was to create judicial review or, if it was, that it was meant to create originalist judicial review. In fact, the evidence, including the Ninth Amendment, points to the contrary.

Following the original meaning of the Constitution therefore requires abandoning originalism as a method of constitutional interpretation. This, in short, is what I call the incoherence problem.

Originalism is primarily about how courts should interpret the Constitution. That leads to an obvious threshold question: How did the Framers intend the courts to do this? Put another way, what was the original meaning of Article III—the section of the Constitution that creates the federal judiciary—in terms of how judicial review should be performed? This important constitutional question should be analyzed under the same approach as is used for all constitutional interpretation.

The answer raises significant problems for originalism. Nothing in Article III explicitly authorizes courts to review the constitutionality of laws and executive actions. Article III, Section 2, defines the types of “cases” and “controversies” the federal courts may hear, but it says nothing whatsoever about a power to declare laws or executive acts unconstitutional. Nor is this power inherent in the authority granted to courts by Article III. Even if federal courts could not declare laws unconstitutional, they still could exercise their constitutional authority to decide the cases and controversies that come before them. Federal courts could apply federal law, decide diversity cases, and resolve all of the other matters enumerated in Article III, Section 2 without being allowed to invalidate a statute or executive action on constitutional grounds. No such power existed in English courts. One would think that if the Framers meant for the Constitution to deviate from English law and practice in such a fundamental way, they would have been explicit about it.

*snip*


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Erwin Chemerinsky: Even the Founders Didn't Believe in Originalism (Original Post) Nevilledog Sep 2022 OP
Erin Chemerinsky is a brilliant constitutional scholar Danmel Sep 2022 #1
Today's LA Times ran this op-ed and I read every word. CaliforniaPeggy Sep 2022 #2
... Nevilledog Sep 2022 #3
Fascinating. So obvious, and I never thought about it that way ms liberty Sep 2022 #4
Kick dalton99a Sep 2022 #5

Danmel

(4,892 posts)
1. Erin Chemerinsky is a brilliant constitutional scholar
Tue Sep 6, 2022, 11:37 PM
Sep 2022

Pre-pandemic, I took a Supreme Court review Continuing Legal Education course from him every year at a local law school. Thanks for posting this. I will bookmark to read

CaliforniaPeggy

(149,308 posts)
2. Today's LA Times ran this op-ed and I read every word.
Tue Sep 6, 2022, 11:52 PM
Sep 2022

Erwin Chemerinsky is a brilliant thinker and I always make a point of reading his essays.

He really nailed it in this op-ed.

Thank you, my dear Nevilledog, for having posted this.

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