Yesterday I critiqued Jonathan Gienapp's new book, The Second Creation, in which he makes an innovative criticism of an old variety: originalism is self-refuting because it was unclear at the founding what the exact nature of the Constitution was, and whether it would be confined merely to its words. Georgia State law professor Eric Segall's new book, Originalism as Faith, makes a more conventional—and for that reason more powerful—attack on originalism. The Constitution is written in such broad generalities—generalities like “due process,” “equal protection,” “cruel and unusual,” “unreasonable searches and seizures,” and “free exercise of religion”—that, Segall argues, even originalists must deploy personal policy preferences and value judgments in most contested constitutional cases. We're all living constitutionalists, even if most of us pretend to be restrained by the Constitution's text.
The criticism that originalism is merely a rationalization for conservative political results is not new. But in making his criticism, Segall is refreshingly honest about nonoriginalism. Most nonoriginalists claim they simply interpret the same text originalists interpret, but draw different conclusions based on their examination of contemporary understandings and practices. Only a few nonoriginalists—like Andrew Coan at the University of Arizona—acknowledge that nonoriginalism is about changing the Constitution over time. Segall, I take it, would agree with that characterization of nonoriginalism. More nonoriginalists should openly embrace that view; after all, that's what they're actually advocating.
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