Wednesday, October 21, 2020

Eric Segall responds on originalism and judicial review

Guest Blogger

 Eric Segall

Thanks, Jack for engaging with these two questions. I'm going to limit my response to the first one. My argument is that the original meaning and understanding of the judicial power in Article III was encapsulated in Alexander Hamilton's Federalist No. 78  in which he said judges would only overturn laws when they were at an "irreconcilable variance" with the Constitution. This deferential standard was well-accepted at the time as the work of many historians shows. You responded that, assuming for sake of argument  this historical account is correct, your thin conception of originalism is not bound by the original expectations of the Founders, and that as other branches of government, especially the President, have grown in size and power through constitutional construction,  so must the judicial role to maintain adequate checks and balances. 

Your argument is internally coherent and relies on your New Originalist method of constitutional interpretation/construction. I have written in many places that once we are allowed to disregard known original expectations, then we have merged originalism and  living constitutionalism for all important purposes. I do not deny that living constitutionalists can advocate for aggressive judicial review. I do think originalists cannot in light of the consensus about strong judicial deference at the Founding. So, I think  this conversation turns on whether your thin version of originalism is truly originalism. Of course, you are entitled to label your theory as you please, and I think, as I wrote in my book, that your descriptive account of constitutional law is both rich  and accurate, but to most scholars, judges, and citizens, not originalist in any meaningful sense of that term, especially when it comes to judicial review. So, I agree that a thin view of originalism can justify aggressive judicial review, but that thin view  allows for major constitutional changes since the Founding, which sounds a lot like living constitutionalism.

Eric J. Segall is Ashe Family Chair Professor of Law at Georgia State University College of Law. You can reach him by e-mail at

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