“Liberals Must Embrace a Bankrupt Judicial Philosophy to Have Any Chance of Winning at the Supreme Court”

I have written this piece for Slate. It begins:

It’s a great time for liberals to brush up on their knowledge of originalism and textualism. These judicial theories, which say that judges should interpret constitutional provisions or statutes by looking solely at their “original public meaning,” are embraced by many of the conservative judges and justices appointed by President Donald Trump who have begun to build a stranglehold on the federal judiciary. Despite recent work demonstrating the bankruptcy of these approaches, liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories…..

In a terrific new book, Originalism as Faith, Georgia State University law professor Eric Segall demolishes the case for originalist constitutional interpretation. Segall traces the long history of originalist thought in American legal circles from the 19th century to the present time. The heart of the book demonstrates the bankruptcy of the originalist approach.

Segall’s key thesis is that originalism does not constrain in the hands of judges purporting to use it. …

a recent podcast conversation, Indiana University Maurer School of Law professor Ian Samuel made the point that a deeply conservative justice believing he or she is constrained by originalism or textualism is better than a justice like Samuel Alito, who is also deeply conservative but not similarly constrained. I continue to believe that in the core cases of greatest importance to conservatives, originalism and textualism are hardly constraining. But Samuel is right about that subset of second-tier cases.

And so it’s time for liberals to dust off the old dictionaries and put on their hard hats for work in the construction zone, despite Segall’s and others’ trenchant critiques. The work won’t be pretty, but it may sometimes get the job done.

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