Almost everything Prof. Chemerinsky says here about originalism is wrong. A thread. 1/6 https://www.nytimes.com/2020/10/21/opinion/supreme-court-amy-coney-barrett.html?smid=tw-nytopinion&smtyp=cur">https://www.nytimes.com/2020/10/2...

John Marshall wasn& #39;t an originalist? That& #39;s a serious mischaracterization of the phrase "it is a constitution we are expounding." He was explaining why lesser, implied powers were not explicitly spelled out, and were left to the Necessary & Proper Clause. Don& #39;t believe me? 2/6

He wrote in Ogden v Saunders "that the intention of the [Constitution] must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended." 3/6

Chemerinsky conflates original expected application and original meaning to claim that originalism can& #39;t justify Brown v. Board. As I explain in both of my books--one coming out in a few weeks--the result in Brown is correct under originalism. 4/6

It& #39;s unconstitutional to elect a woman because the Constitution uses the pronoun "he"? As Prof.
@lsolum
has explained ( https://lsolum.typepad.com/legaltheory/2017/04/the-case-for-originalism-part-four-the-fixation-thesis.html),">https://lsolum.typepad.com/legaltheo... the term "he" was the eighteenth-century& #39;s gender-neutral pronoun, equivalent to today& #39;s "he or she" or "they." 5/6

FWIW, Chemerinsky is probably right about Shelby County. I don& #39;t think there& #39;s an equal sovereignty principle in the Fourteenth Amendment. Anyway, there& #39;s much more to say here and I& #39;m dropping a big op-ed on originalism on Monday...stay tuned! 6/6