In October, The New York Times published an opinion essay by Berkeley law professor (and law school dean) Erwin Chemerinsky originally titled “Amy Coney Barrett’s Originalism Threatens Our Freedoms.” Chemerinsky took aim at the fossilizing impact of “originalism,” the conservative theory of constitutional jurisprudence that declares that only the literal meaning of the Constitution’s text, along with what we know about the “intent” of the Founders, can guide the courts when they interpret laws.
The case against originalism is all too familiar. As Chemerinsky and other legal scholars have emphasized, arguments for an originalist jurisprudence have always rested on flimsy foundations, more in the realm of myth than of practical realities and vulnerable at all times to the charge of anachronism, that “rights in the twenty-first century should not be determined by the understandings and views of centuries ago.”
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