How Justice Scalia Created Chaos: “Originalism” Is Just Right-Wing Ideology In Disguise

Berkeley law school dean Erwin Chemerinsky on the incoherent, dishonest ideology that has warped the Supreme Court.

Astring of recent election results — including the Kansas abortion amendment and special elections for House seats in New York and Alaska — make it clear that the Supreme Court’s decision overturning Roe v. Wade has enormous political consequences, and could even end up preserving the Democrats’ hold on Congress this year. But the court’s decision in Dobbs v. Jackson Women’s Health Organization wasn’t the only earth-shaking break with precedent in the last two weeks of its term. Even if Democrats do hold onto Congress and somehow codify Roe into law (an unlikely set of outcomes) that would only affect one aspect of the vast sweep of policy change the court’s rulings portend.

The new book by UC Berkeley Law School dean Erwin Chemerinsky, “Worse Than Nothing: The Dangerous Fallacy of Originalism,” shows how fundamental those changes could be and focuses on the bogus legal reasoning known as “originalism,” which plays such a crucial role in justifying this sudden and sweeping assertion of judicial power.

Originalists claim to be guided by the original meaning of the Constitution and argue that everyone else is swayed by their own subjective values in groping for other kinds of reasoning. Chemerinsky, as it happens, has first-hand experience in drafting a constitution of sorts. He chaired the Los Angeles Charter Commission, an elected body that rewrote the charter for the second-largest city in the U.S. (in collaboration with a parallel appointed body) just over 20 years ago. So his argument that originalists’ key claims about constitutional meaning are simply false carries significant weight. Even while writing the L.A. charter, Chemerinsky says, there often wasn’t one unanimously agreed-upon meaning for its specific language, and that was even less true after the fact. Over the course of the last 20 years, he reports, questions have arisen that weren’t even considered in the drafting process.

There’s considerable evidence that the same was true of the Constitution written in Philadelphia 235 years ago as well, but none of the framers are still around to confirm that.

   Read more at:https://www.salon.com/2022/09/11/how-justice-scalia-created-chaos-originalism-is-just-right-wing-ideology-in-disguise/