Berkeley Talks Law professors debate the merits of originalism
In Berkeley Talks podcast episode 222, UC Berkeley Law Dean Erwin Chemerinsky and Brian Fitzpatrick, the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School in Nashville, Tennessee, debate the merits of originalism in constitutional interpretation. Originalism is a theory that argues that the U.S. Constitution should be interpreted based on its original meaning, as understood at the time of its adoption nearly 250 years ago, rather than evolving with society.
Arguments for originalism in this debate include:
- Originalism limits judicial discretion and prevents judges from imposing their own political views under the guise of constitutional interpretation.
- It promotes certainty, predictability and stability in law by relying on a fixed meaning of constitutional texts.
- Changes to the Constitution should be left to the formal amendment process, rather than judicial interpretation.
Arguments against originalism include:
- Originalism is often unworkable in practice because it’s difficult to determine the original meaning or intent of constitutional provisions, and historical context can be challenging to fully understand.
- The theory ties modern society to the views and values of earlier generations, potentially limiting constitutional rights and guarantees to outdated perspectives.
- It allows judges to impose their own biases under the guise of historical interpretation.
This symposium, which took place on March 17, 2025, was UC Berkeley Law’s inaugural Thomas David and Judith Swope Clark Symposium on Constitutional Interpretation. Watch a video of the debate on UC Berkeley Law’s YouTube page.
Listen to the episode and read the transcript on UC Berkeley News (news.berkeley.edu/podcasts).
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