Friday, October 12, 2018

Recommending Eric Segall's "Originalism as Faith"

Stephen Griffin

Amid the torrent of constitutional controversy, I want to make sure that Eric Segall’s interesting new book Originalism as Faith did not get lost.  It will be published soon by Cambridge University Press.  I know from experience that it takes a lot of hard work over an extended period to make a theory book like this work and Eric succeeds beautifully.  His book should be particularly valuable to those who haven’t been able to follow the ins and outs of the now decades-long debate between originalism and living constitutionalism.  You can just read Eric’s book and catch up!  I don’t share his legal realist perspective or agree with all of his arguments about originalism, but that is secondary to the book’s many virtues.  Here I will emphasize three contributions Eric makes.

First, Eric argues at some length that Supreme Court justices committed to originalism, particularly the late Justice Scalia and Justice Thomas, have been unable to consistently adhere to it.  He makes a very good case.  That should be a big deal.  To some academic scholars, however, this does not show a fundamental problem with originalism.  They seem to believe that originalism is a freestanding theory like utilitarian or Kantian approaches to ethics.  But the test the real world of judicial decision making imposes is an important one for any theory about American constitutional law and that’s what originalism is.  The inability of originalist justices to adhere to their own methodology has long deserved to be highlighted and that’s what Eric does so provocatively.

Second, as Eric describes, the newer academic version of originalism may not be as concerned to discuss concrete cases, but to that extent, it has become less relevant to the debate concerning the proper use of judicial discretion in carrying out judicial review under the Constitution.  This means the newer forms of originalism are becoming untethered to what produced the debate between living constitutionalism and originalism in the first place.  Indeed, important works inaugurating the new originalism, like Keith Whittington’s Constitutional Interpretation did not discuss cases or the judicial role at all.  This leaves these newer forms of originalism open to the charge that they are trying to change the subject, rather than advance the discussion. 

Finally, Originalism as Faith raises a serious question as to whether contemporary forms of originalism should come with a consumer warning label: “extensionally equivalent to living constitutionalism,” or, perhaps, “inspired by a true story.”  Eric argues very effectively that newer forms of originalism (which are evolving so quickly that he labels one chapter “The New New Originalists”) are really somewhat overcooked forms of living constitutionalism.

There’s a lot more in Eric’s fine book, which I haven’t attempted to summarize.  I hope constitutional scholars, originalists or not, will engage with it.

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