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02/23/2018

Eric Segall Asks "What is Originalism?"
Michael Ramsey

At Dorf on Law, Eric Segall: What is Originalism circa 2018? (an entertaining account of his presentation and the reaction to it at the San Diego originalism works-in-progress conference last weekend).  An excerpt:

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.

...

I identified a number of well-known originalists in the room, including Randy Barnett and Evan Bernick, Will Baude and Steve Sachs, the three Mikes (Ramsey, Rappaport and McConnell), Kurt Lash, and Steve Smith. Jack Balkin was also present, but other than Barnett, no one really knows why Balkin calls himself an originalist. Anyway, my point was that Baude and Sachs believe cases like Brown v. Board of Education, Lawrence v. Texas and the same-sex marriage decisions show that "originalism is our law," while none of the three Mikes or Barnett, or almost anyone else in the room take that position. Their views are emphatically not that originalism is our law, but that it should be our law.

I also observed that Barnett's and Bernick's libertarian form of originalism with strong judicial engagement is worlds away from other more deferential kinds of originalism. Moreover, Rappaport's and McGinnis's "original methods" theory, which calls for judges to only apply the interpretative methods of the founders, is a distant relative to some of the forms of originalism advocated by others in the room.

Thanks to Professor Segall for his kind words about the conference (and for his outstanding contribution to it).  I'll say in very brief response (1) I don't know that it's a problem that originalism is more a family of related approaches rather than a single unified approach; and (2) while I do think originalism is a family, I also think it is unified by a set of core commitments, and can appear more fragmented when one focuses on the more novel theories and the more difficult constitutional provisions.