Originalism as Faithfulness
6 Pages Posted: 16 Nov 2021
Date Written: October 31, 2019
Eric Segall's Originalism as Faith is a quick, easily-digestible summary of the conventional wisdom about the Supreme Court's relationship to original meaning for large portions of the legal academy. Prominent textbook authors like Deans Erwin Chemerinsky and Geoffrey Stone tout it as "masterful" and "persuasive." Originalism is false, Segall contends, because its adherents on the Court apply it selectively at best. If even the justices who most prominently claim to follow original meaning don't take it as binding, why should anyone else? The "faith" of which Segall's title speaks is a faith in the Supreme Court to govern its decisions by historical standards: a "faith that some combination of text, originalist-era evidence, and history can constrain Supreme Court decision making." This faith is misplaced, because the Court cannot do so.
Originalism as Faith has one big virtue but four main flaws. Segall properly points out elements of hypocrisy from originalists on the Court, but draws the wrong lesson from that hypocrisy, and muddies three crucial distinctions in constitutional law: between Court and Constitution, between epistemology and ontology, and between application and meaning.
Suggested Citation: Suggested Citation