Originalism as Faith

by Eric J. Segall

Overview

Originalism as Faith presents a comprehensive history of the originalism debates. It shows how the doctrine is rarely used by the Supreme Court, but is employed by academics, pundits and judges to maintain the mistaken faith that the Court decides cases under the law instead of the Justices' personal values. Tracing the development of the doctrine from the founding to present day, Eric J. Segall shows how originalism is used by judges as a pretext for reaching politically desirable results. The book also presents an accurate description and evaluation of the late Justice Scalia's jurisprudence and shows how he failed to practice the originalism method that he preached. This illuminating work will be of interest to lawyers, law students, undergraduates studying the Court, law professors and anyone else interested in an honest discussion and evaluation of originalism as a theory of constitutional interpretation, a political weapon, and an article of faith.

Product Details

ISBN-13:	9781108117562
Publisher:	Cambridge University Press
Publication date:	10/18/2018
Sold by:	Barnes & Noble
Format:	eBook
File size:	3 MB

About the Author

Eric J. Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. He is the author of Supreme Myths: Why the Supreme Court is Not a Court and its Justices are Not Judges (2012).

Table of Contents

Prologue; 1. Originalism and judicial review: an introduction; 2. Judicial review at the beginning; 3. Originalism's path; 4. The original originalists and their critics; 5. The new originalism; 6. The new, new originalists; 7. The non-originalism of justices Scalia and Thomas; 8. Originalism without strong deference cannot work; 9. Values and ideology drive supreme court decisions; 10. Originalism as faith; Conclusion.

Editorial Reviews

‘Eric J. Segall does a masterful job showing the different types of originalism, demonstrating their fatal flaws, and revealing that even those who purport to be originalists – like Scalia and Thomas – often abandon originalism when it does not serve their ideological agendas.' Erwin Chemerinsky, University of California, Berkeley, School of Law, author of The Case Against the Supreme Court, from the prologue

‘Eric J. Segall's Originalism as Faith is a must-read for anyone who cares about the future of constitutional interpretation and the Supreme Court's outsized role in regulating American life. Written clearly and succinctly, Segall's book shows that far from constraining judges, originalism gives judges who apply it tools to decide cases in line with their (usually conservative) values while hiding behind the veneer of neutrality.' Richard L. Hasen, Chancellor's Professor of Law and Politcal Science, University of California, Irvine, and author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption

‘Professor Segall has presented a compelling refutation of the legal doctrine of ‘originalism', which teaches that the duty of judges is to determine and enforce the original meaning of constitutional provisions. As Segall shows convincingly, even the judges and Justices who declare themselves to be originalists merely masquerade as such to avoid being unmasked as lawmakers.' Richard A. Posner, Judge (retired), United States Seventh Circuit Court of Appeals, and author of Reflections on Judging

‘In Originalism as Faith, Eric J. Segall offers a thoughtful, rigorous, and persuasive critique of originalism as a method of constitutional interpretation that demonstrates that it is ahistorical, internally inconsistent, and often violated by those who purport to employ it. This is truly an important and masterful contribution to our understanding of constitutional interpretation.' Geoffrey R. Stone, University of Chicago Law School and author of Sex and the Constitution: Sex, Religion and Law from America's Origins to the Twenty-First Century

'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.' Stephen Griffin, Balkinization (balkin.blogspot.com)

'Georgia State law professor Eric Segall’s new book, Originalism as Faith, makes a more conventional - and for that reason more powerful - attack on originalism.' Ilan Wurman, Claremont Review of Books

'This is a thoughtful, well-researched text, and a significant contribution to constitutional history and legal theory.' T. R. Gillespie, Choice

From the Publisher