3085 - The Fraud That Is Judicial Originalism w/ Erwin Chemerinsky

Happy Monday! Sam and Emma host Erwin Chemerinsky, Dean of the University of California, Berkeley Law School, to discuss his recent book Worse Than Nothing: The Dangerous Fallacy of Originalism. First, Sam and Emma run through updates on the multiple mass killings in Texas this weekend, debt limit talks, Title 42, Trump’s civil rape case, Biden’s floundering polling numbers, and labor action from the WGA and Oakland teachers, before diving into the coverage of this weekend’s mass shooting in Texas, and the right, once again, weakly recycling their “politicization” talking points. Erwin Chemerinsky then joins as he walks through the popularization of “originalism” coming out of the failed nomination of Robert Bork to the Supreme Court in 1987, exploring what originalism is, and how it relies on reverse engineering the opinions of our “framers” from the perspective of whatever “originalist” is making the argument. After parsing through the history of originalism, Erwin takes on the five central problems with originalism, beginning with the epistemological problem of being unable to actually determine the intent of countless framers involved in constructing our constitution, the incoherence problem of the framers’ rejection of a static view of the constitution grounded in the exact (and incredibly vague) words they put forward, the abhorrence problem of what originalism would actually result in (segregation, sex-based discrimination, etc), the modernity problem of how drastically the technologies and infrastructure of our era have departed from that of the 18th Century, and, lastly, the hypocrisy problem presented by the obvious inconsistent application of originalism by any and all originalists. Wrapping up, Professor Chemerinsky tackles why originalism has grown so prevalent in constitutional discourse, the massive conservative project that brought it to this point, and how the left can push back.

And in the Fun Half: Sam and Emma dive into this weekend’s massacre in Texas, Dick Durbin’s complete impotence when it comes to Dianne Feinstein’s absence, and Brian from North Carolina reflects on a country that has normalized myriad violent and antisocial horrors. The MR Crew reflects on the Right’s one-sided concerns with corruption, and Shenida calls in to recommend Prince Harry as a guest on the show.  Emma and Sam address the absurd coverage of Emma’s “public places should be safe for homeless and impoverished people too” take. They dive into Trump’s testimony in his civil rape case, plus, your calls and IMs!

Check out Erwin's book here: https://yalebooks.yale.edu/book/9780300259902/worse-than-nothing/

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