Originalism As Faith, by Eric J. Segall
Leave it to someone to write about originalism and faith without having a high view of either. This book is a terrible book, about the worst sort of book that can be written about the controversial and difficult aspect of Supreme Court decisions. Behind the author’s cynical (he would call them “legal realist”) views lies a desperate fear that conservatives will dominate the court for generations and turn back what the author considers “settled law” on various matters. He argues that the only sort of originalism is that which has a high degree of deference for laws passed by Congress as well as existing (and often bad) precedents like (but by no means limited to) Roe vs. Wade. The stridency of the author’s views and his obvious contempt for having a high regard of the moral sense of the founding generation as well as traditional morality as a whole makes this particular book fascinating as a sign of the derangement and fear about the United States being a republic of virtue among those of the decadent left. And that fear and derangement were about the only worthwhile things about this book, unfortunately for any reader who is not a part of the author’s political camp.
This mercifully short but tedious tirade consists of ten chapters that seek to present a Progressive legal realistic view of originalism and the decisions of the Supreme Court, after acknowldgements, an author’s note, and a prologue. The author begins with a discussion of the relationship on originalism and judicial review (1) and then moves on to a discussion of judicial review in the views of the founding generation, which saw a place for it in certain aspects (2). The author then moves on to look at originalism’s path (3) as a legal doctrine and the early criticisms, mostly by progressives whose opinions are pretty worthless anyway, on them (4). The author then spends a couple of chapters subjecting new (5) and new, new (6) originalists as the author describes them to serious scorn, showing that this book is more about ridicule and fearmongering than it is about serious legal scholarship. The author then moves to a discussion about what he views as the non-originalism of Scalia and Tomas (7), the two judges most noted for that approach on the court during the 2000’s and 2010’s, along with the author’s obiter dictum that originalism without strong deference cannot work (8). Finally, the author closes with the rather obvious notion that values and ideology drive Supreme Court decisions (9) and views originalism as a political faith (10) which he doesn’t have much respect for.
The author is a prime example of someone who doesn’t know what he is talking about, but deliberately so rather than in ignorance. He muddies the water by including as originalists such non-originalists as Chief Justice Taney of Dred Scott fame and some “inclusive” originalists of equal dubiousness who view anything that makes immoral subaltern groups more legitimate legally as worthwhile to pursue in law. The author seeks to drag conservative legal theorists down to his level in the muck and beat them with experience. Rather than engage in a war of pamphleteering this author appears to have in mind, the best way to deal with this sort of approach is to continue to elect the right presidents and Senators, selecting the right judges who will rule cases the right way, and to let the author and others of his ilk impotently wail the supposed injustice of a justice system that starts to roll back the corrupt judgments that made inflamed the contemporary culture wars and helped bring the Supreme Court in such a problematic position as an agent of unwelcome and immoral social and political change.