Originalism and Its Discontents

Originalism is a major school of constitutional interpretation and a growing field of academic study. Originalist arguments, as well as criticisms of originalism, commonly feature in public discourse as well as legal practice. To engage these arguments, lawyers and citizens must be able to weigh the merits of a diverse set of originalist theories. This course will acquaint students with the variety of originalist and nonoriginalist arguments; give them an opportunity to sharpen their views on the topic; and enable them to judge for themselves the strengths and weaknesses of each. Students will consider a variety of originalist theories (original intentions, original meanings, original methods, etc.), the various forms of argument used to support or oppose them (conceptual, normative, positive), and the different emphases in originalist argumentation over time (the "old" originalism vs. the "new").

The course will be taught as a two-hour weekly seminar, focused on class discussion of the readings. The day before each session, students will submit a short (2-4 pp.) response to that week's readings. Response papers will be circulated to all participants via Sakai and will serve, together with my own comments at the start of each session, as a basis for discussions. Students will also conduct their own independent research on the topic, engaging with a particular aspect of originalist theory or proposing or critiquing a particular originalist reading of some portion of the Constitution. Students will submit first drafts of the research project (25 pp.) for review and comment, and may have the opportunity to workshop their drafts with the class. Grading will be based on class participation, the response papers, and the draft and final research papers. Writing for the course will satisfy the upper-level writing requirement.

Prerequisites: Either (1) (A) one introductory course on American constitutional law, as well as (B) one upper-level course on constitutional law, legislation and statutory interpretation, federal courts, administrative law, or jurisprudence; or (2) equivalent coursework elsewhere. (This prerequisite may be waived with permission of the faculty member.)

3 credits.
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Course Frequency*: 
Course Learning Outcomes: 
(a) Knowledge and understanding of substantive and procedural law


*Please note that this information is for planning purposes only, and should not be relied upon for the schedule for a given semester. Faculty leaves and sabbaticals, as well as other curriculum considerations, will sometimes affect when a course may be offered.