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Eric Segall on Originalism and Restraint
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism, Deference, and Judicial Hypocrisy. From the introduction:

I am currently working on a long law review article showing that the original meaning of judicial review is nothing like the practice of judicial review today. One can believe in originalism or one can believe in non-deferential, strong judicial review, but one cannot believe in both (at least with intellectual consistency). This blog post is a short summary of that thesis with a lot more to come.

Originalist Professors Michael Rappaport and John McGinnis have long argued in essays, articles, and a book that judges today should use only those interpretive methods that were available to judges at the founding to decide constitutional law cases. The early originalists such as Robert Bork and Raoul Berger would have certainly agreed with that thesis. Professors Will Baude and Steve Sachs, who maintain that our law today is the original law until formally changed, would likely agree with Rappaport and McGinnis. And, most New Originalists, who disagree among themselves about many aspects of constitutional interpretation, would nevertheless likely accept that judges should conduct both constitutional interpretation and constitutional construction in ways similar to how judges acted around the time of the ratification of the Constitution. In essence, Originalists today believe judges should look to relevant ratification periods to determine how today’s judges should decide cases (leaving aside the issue of following non-originalist case law).


If originalism is our law, then judges have a duty of substantial deference in all cases not directly affecting federal courts themselves, such as issues concerning juries and federal jurisdiction. Even at the founding, judges exercised relatively strong judicial review in cases where the judicial power or jury rights were directly at issue.

On the other hand, in all other cases, overwhelming evidence suggests that originalist judges should rarely overturn state or federal laws. What that means for today is whether the case involves affirmative action, free speech, abortion, gun rights, separation of powers, federalism, or most other constitutional questions, judges should only invalidate state or federal laws upon a clear showing by the plaintiff of constitutional error and an opinion that makes extremely transparent the nature of that error. ...

I suspect, though, that in many of the cases to which Professor Segall objects, the judges think the constitutional violation is clear.  So I'm not sure how as a practical matter this idea gets implemented.