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.