Originalism as Faith

16 Pages Posted: 22 Mar 2016 Last revised: 19 May 2016

See all articles by Eric Segall

Eric Segall

Georgia State University College of Law

Date Written: March 21, 2016

Abstract

This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism."

The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.

Suggested Citation

Segall, Eric, Originalism as Faith (March 21, 2016). Cornell Law Review Online, Forthcoming; Georgia State University College of Law, Legal Studies Research Paper No. 2016-11. Available at SSRN: https://ssrn.com/abstract=2752545

Eric Segall (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

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