Originalism as Faith

  title={Originalism as Faith},
  author={Eric J. Segall},
This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way… 
7 Citations

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism

  • A. Hall
  • Law, History
    Law and History Review
  • 2019
This essay considers how the cultural authority of the constitutional Founding became legal authority in antebellum America. Examining a series of cases implicating the constitutional politics of

The Constitutional Communication Model of Originalism

In Chapter 1, I described originalism’s current status, and I noted the many areas of current debate among originalists. My description was ecumenical because it did not “take sides” in the debates.


OF DISSERTATION FROM HOBBES TO HABERMAS: THE ANTI-CULTURAL TURN IN WESTERN POLITICAL THOUGHT The theme of this dissertation is the anti-cultural turn of Western Political Thought that has emerged out

Practical Insights or Parlor Games? The Visibility of a Systemic Approach to Analyzing Modalities of Interpretation

Modalities of interpretation help us describe legal reasoning. Pervasive in the world of the law, they are usually taken only as tools to craft persuasive arguments. And with the exception of

Book Notes

CONSTITUTIONAL THEORY AND HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550 CONTRACTS AND CAPITALISM . . . . . . . . . . . . . . . . . . . . . . .

Aggressive Judicial Review, Political Ideology, and the Rule of Law

  • E. Segall
  • Political Science
    Studia Iuridica
  • 2019
Od ponad stu pięćdziesięciu lat Sąd Najwyższy Stanów Zjednoczonych jest najpotężniejszym organem sądowniczym na świecie, złożonym z sędziów mianowanych na całe życie, którzy są uprawnieni do tego,



Is Originalism Our Law

This Essay provides a new framework for criticizing originalism or its alternatives --- the framework of positive law. Existing debates are either conceptual or normative: They focus either on the

Originalism As a Political Practice: The Right’s Living Constitution

To whatever extent the Rehnquist Court actually executed a counterrevolution, surely a good deal of its inspiration came from “originalism,”1 from the view that the only acceptable method of

The New Originalism

New originalist theories of judicial review and constitutional interpretation that have emerged since the 1980s can be distinguished from an older set of theories that were predominant in the 1970s

The Case for Original Intent

This essay, written for a symposium celebrating the centennial of Max Farrand's Records of the Federal Convention, seeks to situate the constitutional culture's heavy reliance on the Convention

The Sedimentary Constitution

This paper examines the use of history in constitutional interpretation. The first part is a historiography explaining how throughout this century there has been a tension between originalism and

Originalism and Sex Discrimination

Justice Scalia and most other originalists have concluded that Section One of the Fourteenth Amendment does not prohibit discrimination on the basis of sex. In their view, originalism is incompatible

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review

Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their

Abortion and Original Meaning

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning

The Original Understanding of Original Intent

The Attorney General of the United States has called for a "jurisprudence of original intention." In response, Justice Brennan decries "facile historicism." 1 Whichever way the debate goes in its

An Originalism for Nonoriginalists

In this paper, I claim that, far from being defeated in the 80's, originalism is the prevailing method of constitutional interpretation (Part I), but it is an originalism based on an objective