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2020 U. Chi. L. Rev. Online 1 (2020)

handle is hein.journals/uchidial88 and id is 1 raw text is: 1/6/20 U. Chi. L. Rev. Online *1 ORIGINALIST FICTION AS CONSTITUTIONAL FAITH by Eric J. Segall Professor Christopher Green's respectful review of my book Originalism as Faith argues that my project has one big virtue but several flaws. He says that the book properly points out elements of hypocrisy from originalists on the Court but draws the wrong lesson from that hypocrisy because it muddies the crucial distinctions ... between Court and Constitution ... and between application and meaning. Cleverly titled, Originalism as Faithfulness, Professor Green contends that judicial and civic devotion to the document's original meaning is a necessary component of faithfulness to constitutional law. I appreciate Professor Green's honest engagement with my book. He concedes or at least accepts my descriptive accounts of both the hypocrisy of self-styled originalist Supreme Court judges, and the ubiquity of the Court's non-originalist constitutional law doctrines. As for my book's alleged flaws, Professor Green's arguments, rather than supporting his own originalist, oath-driven account of the Constitution, actually demonstrate that in litigated cases the document itself is little more than a parchment barrier with limited utility. Constitutional law is not driven in any meaningful way by judicial, political or scholarly attention to text or history but rather by a complex interaction of politics, law, social movements, and cultural change. Professor Green's faith in the importance of the oath judges take to uphold this Constitution (the one ratified by the people of 1787 as properly amended) reveals little about how constitutional law is made binding on the ground by varied political actors especially the United States Supreme Court. It is originalism as fiction. Originalism v. Originalists A substantial part of Originalism as Faith argues that neither the Supreme Court as an institution, nor any individual Supreme Court Justice, has ever consistently applied originalism as a method of constitutional interpretation. My book devotes three chapters to substantiating with abundant case law evidence the thesis set forth by, among many others, Professor David Strauss and Dean Erwin Chemerinsky, that constitutional law is mostly the aggregate of the Justices' value preferences. Therefore, the idea that judges have used originalism to decide constitutional law cases is simply wrong as a descriptive matter. Many law professors, judges, court commentators and media pundits still argue that originalism should be a determiner of case outcomes whether it has been or not. Professor Green contends that the misuse or non-use of a theory does not demonstrate that theory's flaws. Maybe. But over two hundred years of non-

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