Originalism as Faith

Tracing the development of originalism, Eric J. Segall shows how judges often use the theory to reach politically desirable results.

Eric J. Segall (Author)

9781316640463, Cambridge University Press

Paperback / softback, published 18 October 2018

254 pages
22.8 x 15.3 x 1.4 cm, 0.37 kg

'This is a thoughtful, well-researched text, and a significant contribution to constitutional history and legal theory.' T. R. Gillespie, Choice

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.

Prologue
1. Originalism and judicial review: an introduction
2. Judicial review at the beginning
3. Originalism's path
4. The original originalists and their critics
5. The new originalism
6. The new, new originalists
7. The non-originalism of justices Scalia and Thomas
8. Originalism without strong deference cannot work
9. Values and ideology drive supreme court decisions
10. Originalism as faith
Conclusion.

Subject Areas: Constitutional & administrative law [LND], Jurisprudence & philosophy of law [LAB], Law [L], Constitution: government & the state [JPHC], Politics & government [JP]