What do you think?
Rate this book
Originalism as Faith
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.
254 pages, Hardcover
Published October 18, 2018
24 people are currently reading
217 people want to read
Ratings & Reviews
Friends & Following
Create a free account to discover what your friends think of this book!
Community Reviews
Displaying 1 - 8 of 8 reviews
June 2, 2019
Segall did an excellent job of providing the background for originalism and highlighting its limitations as a basis for Constitutional jurisprudence. He also supports very well the observation, also made by others, that its most notable and recent practitioners conveniently abandon it where it supports a conclusion at odds with their general political orientation.
October 31, 2018
Excellent book about originalism, it’s history and iterations, and why like most judicial approaches does not work in practice. Segall lays out the book very well and it is an accessible, readable and thoughtful look at the topic.
August 10, 2022
This book effectively surveys the history, hypocrisy, and defects of originalism as a theory of constitutional review. Among many other things, the author demonstrates that the late Justice Scalia and Justice Thomas were/are not at all consistent originalists but rather follow[ed] their political ideologies when originalism fails to provide their desired political conclusions.
I am not sure, however, about the author's proposed alternative(s) to originalism. I am currently reading many judicial decisions, books, and essays on constitutional interpretation and application. Eventually, I hope to set forth an approach to constitutional adjudication that provides a principled alternative to originalism.
Although this book was published in 2018, the decisions of the new conservative Supreme Court majority in its 2021-22 term may have already made some of its statements dated. Specifically, the new majority is applying originalism (alleged original historical meaning of constitutional provisions) very literally, contrary to the author's argument that Supreme Court decisions rarely employ an originalist procedure.
I am not sure, however, about the author's proposed alternative(s) to originalism. I am currently reading many judicial decisions, books, and essays on constitutional interpretation and application. Eventually, I hope to set forth an approach to constitutional adjudication that provides a principled alternative to originalism.
Although this book was published in 2018, the decisions of the new conservative Supreme Court majority in its 2021-22 term may have already made some of its statements dated. Specifically, the new majority is applying originalism (alleged original historical meaning of constitutional provisions) very literally, contrary to the author's argument that Supreme Court decisions rarely employ an originalist procedure.
February 12, 2019
Leave it to someone to write about originalism and faith without having a high view of either. This book is a terrible book, about the worst sort of book that can be written about the controversial and difficult aspect of Supreme Court decisions. Behind the author's cynical (he would call them "legal realist") views lies a desperate fear that conservatives will dominate the court for generations and turn back what the author considers "settled law" on various matters. He argues that the only sort of originalism is that which has a high degree of deference for laws passed by Congress as well as existing (and often bad) precedents like (but by no means limited to) Roe vs. Wade. The stridency of the author's views and his obvious contempt for having a high regard of the moral sense of the founding generation as well as traditional morality as a whole makes this particular book fascinating as a sign of the derangement and fear about the United States being a republic of virtue among those of the decadent left. And that fear and derangement were about the only worthwhile things about this book, unfortunately for any reader who is not a part of the author's political camp.
This mercifully short but tedious tirade consists of ten chapters that seek to present a Progressive legal realistic view of originalism and the decisions of the Supreme Court, after acknowldgements, an author's note, and a prologue. The author begins with a discussion of the relationship on originalism and judicial review (1) and then moves on to a discussion of judicial review in the views of the founding generation, which saw a place for it in certain aspects (2). The author then moves on to look at originalism's path (3) as a legal doctrine and the early criticisms, mostly by progressives whose opinions are pretty worthless anyway, on them (4). The author then spends a couple of chapters subjecting new (5) and new, new (6) originalists as the author describes them to serious scorn, showing that this book is more about ridicule and fearmongering than it is about serious legal scholarship. The author then moves to a discussion about what he views as the non-originalism of Scalia and Tomas (7), the two judges most noted for that approach on the court during the 2000's and 2010's, along with the author's obiter dictum that originalism without strong deference cannot work (8). Finally, the author closes with the rather obvious notion that values and ideology drive Supreme Court decisions (9) and views originalism as a political faith (10) which he doesn't have much respect for.
The author is a prime example of someone who doesn't know what he is talking about, but deliberately so rather than in ignorance. He muddies the water by including as originalists such non-originalists as Chief Justice Taney of Dred Scott fame and some "inclusive" originalists of equal dubiousness who view anything that makes immoral subaltern groups more legitimate legally as worthwhile to pursue in law. The author seeks to drag conservative legal theorists down to his level in the muck and beat them with experience. Rather than engage in a war of pamphleteering this author appears to have in mind, the best way to deal with this sort of approach is to continue to elect the right presidents and Senators, selecting the right judges who will rule cases the right way, and to let the author and others of his ilk impotently wail the supposed injustice of a justice system that starts to roll back the corrupt judgments that made inflamed the contemporary culture wars and helped bring the Supreme Court in such a problematic position as an agent of unwelcome and immoral social and political change.
This mercifully short but tedious tirade consists of ten chapters that seek to present a Progressive legal realistic view of originalism and the decisions of the Supreme Court, after acknowldgements, an author's note, and a prologue. The author begins with a discussion of the relationship on originalism and judicial review (1) and then moves on to a discussion of judicial review in the views of the founding generation, which saw a place for it in certain aspects (2). The author then moves on to look at originalism's path (3) as a legal doctrine and the early criticisms, mostly by progressives whose opinions are pretty worthless anyway, on them (4). The author then spends a couple of chapters subjecting new (5) and new, new (6) originalists as the author describes them to serious scorn, showing that this book is more about ridicule and fearmongering than it is about serious legal scholarship. The author then moves to a discussion about what he views as the non-originalism of Scalia and Tomas (7), the two judges most noted for that approach on the court during the 2000's and 2010's, along with the author's obiter dictum that originalism without strong deference cannot work (8). Finally, the author closes with the rather obvious notion that values and ideology drive Supreme Court decisions (9) and views originalism as a political faith (10) which he doesn't have much respect for.
The author is a prime example of someone who doesn't know what he is talking about, but deliberately so rather than in ignorance. He muddies the water by including as originalists such non-originalists as Chief Justice Taney of Dred Scott fame and some "inclusive" originalists of equal dubiousness who view anything that makes immoral subaltern groups more legitimate legally as worthwhile to pursue in law. The author seeks to drag conservative legal theorists down to his level in the muck and beat them with experience. Rather than engage in a war of pamphleteering this author appears to have in mind, the best way to deal with this sort of approach is to continue to elect the right presidents and Senators, selecting the right judges who will rule cases the right way, and to let the author and others of his ilk impotently wail the supposed injustice of a justice system that starts to roll back the corrupt judgments that made inflamed the contemporary culture wars and helped bring the Supreme Court in such a problematic position as an agent of unwelcome and immoral social and political change.
February 27, 2019
More than jurisprudence as such, "Originalism as Faith" makes a sobering case for how arbitrary, ideological, and dangerous the continuous and arbitrary doctrines of constitutional originalism are. It is a fair attack on the domination by fanatic ideologues of courts, most of all the Supreme Court.
In particular, the federal appellate courts and theSupreme Court intrinsically are dangerous as recent appointments and decisions reveal. It ought simply determine questions about the constitutionality of decisions, not institute ideological rules often disguised as moral rules or inherent authorities of some sort, for governing.
"Trusting government officials" appointed for life "to determine anything other than the mere constitutionality of laws" ('which is the entire constitutional docket') "is nothing more than an overtly optimist, but wholly unrealistic, and ultimately dangerous, article of faith."
In particular, the federal appellate courts and theSupreme Court intrinsically are dangerous as recent appointments and decisions reveal. It ought simply determine questions about the constitutionality of decisions, not institute ideological rules often disguised as moral rules or inherent authorities of some sort, for governing.
"Trusting government officials" appointed for life "to determine anything other than the mere constitutionality of laws" ('which is the entire constitutional docket') "is nothing more than an overtly optimist, but wholly unrealistic, and ultimately dangerous, article of faith."
March 10, 2020
Great critique of originalism, especially the new-originalist movement. Segall shows how originalism doesn't provide the answer to imprecise text like "due process", "establishment of religion", and "equal protection of the laws". Fundamentally, the answers to these questions require political value judgments. Segall shows how originalism is camouflage for right-wing jurists to make right-wing policy from the bench, as they hypocritically denounce judicial activism on the left.
October 14, 2019
Rigorous but accessible book showing the problems with judicial originalism as a constitutional philosophy
Read
July 23, 2023DNF
Displaying 1 - 8 of 8 reviews