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09/23/2018

Jeremy Telman: Originalism as Fable
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted Originalism as Fable (Reviewing Eric Segall, Originalism as Faith) on SSRN.  Here is the abstract:

Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalismbecomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism, in all its variants, and his mastery of constitutional doctrine.

This Essay offers two ways in which Segall’s exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall’s legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution.

Originalism with bite and living originalism provide theoretical responses to Segall’s challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in the unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.

Professor Segall's book Originalism as Faith is forthcoming from Cambridge University Press in October.

RELATED:  Professor Telman has an interesting series of guest posts at Balkinzation on his new article John Marshall's Constitution:

Marshall’s Method and Why It Might Matter

Interpretive Pluralism and Ipse Dixit Judgments