Here is a new book describing–it appears in negative terms (though this is speculation at this point)–the practice of originalism in constitutional interpretation as an exercise of “faith”: Originalism as Faith (CUP) by law professor and self-declared anti-originalist Eric Segall. Segall follows in the path of other law professors, like Sandy Levinson, who have described ways of believing in the Constitution in religious terms. For an effort of my own a few years ago along these lines, see this paper on the rule of law. It will be interesting to see how Segall describes “faith” as distinct from other epistemological ways of believing and/or knowing.
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 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.