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10/03/2020

Eric Segall Reviews Lee Strang's book "Originalism's Promise"
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted Originalism's False Promise (reviewing Lee Strang's "Originalism's Promise") (Faulkner Law Review) (34 pages) on SSRN.  Here is the abstract:

This Review Essay of Professor Lee Strang's Book "Originalism's Promise: A Natural Law Account of the American Constitution" suggests that although the book admirably tries to unify various strands of modern originalism, it fails to persuasively justify its religious-like devotion to originalism or its reverence for the Founding. Strang does not wrestle with slavery, sexism, or segregation nor does he explain how .the worlds of 1789 and 1868 can help today's judges who must apply imprecise text to modern problems.

Like most originalists, almost all of Strang's theoretical constructs lead to conservative results that cannot be justified by reliance on the Constitution's original meaning nor does Strang follow through consistently on his formulations for how judges should deal with non-originalist precedent, which makes up the great body of constitutional law. The book is a classic example of originalism as faith.

Here is a link to Professor Strang's book (Cambridge Univ. Press 2019) on Amazon, and here is the book description:

The foundation of the American legal system and democratic culture is its longstanding written Constitution. However, a contentious debate now exists between originalists, who employ the Constitution's original meaning, and Nonoriginalists, who argue for a living constitution interpretation. The first natural law justification for an originalist interpretation of the American Constitution, Originalism's Promise presents an innovative foundation for originalism and a novel description of its character. The book provides a deep, rich, and practical explanation of originalism, including the most-detailed originalist theory of precedent in the literature. Of interest to judges, scholars, and lawyers, it will help all Americans better understand their own Constitution and shows why their reverence for it, its Framers, and its legal system, is supported by sound reasons. Originalism's Promise is a powerful contribution to the most important theory in constitutional interpretation.