Judicial Engagement, New Originalism, and the Fortieth Anniversary of Government by Judiciary

Publication Title

Fordham Law Review Online

Document Type

Article

Publication Date

2017

Abstract

Part I briefly summarizes Berger’s originalist approach. Part II describes how the new Judicial Engagement originalists suggest judges should resolve constitutional cases. Part III explains why text and history do not support their judicially enforceable, libertarian political agendas. Part III does not suggest that this agenda leads to bad results, is harmful, or should not be adopted by today’s judges. But for the sake of governmental and academic transparency, judges, legal scholars, and politicians who embrace Judicial Engagement, should also accept that their theory of judicial review is not supported by either the Constitution’s text or history. Judicial Engagement can only be justified by adopting a “living Constitution” approach to constitutional interpretation.

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External Links

Fordham Law Review Online

Recommended Citation

Eric J. Segall, Judicial Engagement, New Originalism, and the Fortieth Anniversary of Government by Judiciary, 86 Fordham L. Rev. Online 47 (2017), https://ir.lawnet.fordham.edu/flro/vol86/iss1/16

Volume

86

First Page

47

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