Originalism and Its Discontents

Originalism is a major school of constitutional interpretation and a growing field of study. Both public discourse and legal practice commonly feature originalist arguments as well as criticisms of originalism. To engage these arguments, lawyers and citizens should be able to weigh the merits of a diverse set of originalist theories. This course is designed to acquaint you with a number of originalist and nonoriginalist arguments; enable you to judge for yourself the strengths and weaknesses of each; and give you an opportunity to sharpen your own views on the topic. It examines various originalist theories (original intentions, original meanings, original methods, and so on), different emphases in originalist argumentation over time (the “old” originalism vs. the “new”), and forms of argument used in support or opposition (conceptual, normative, positive). The course will be taught as a two-hour weekly seminar, focused on class discussion of the readings. Each student will choose weeks in which to submit a total of eight short papers (5-8 pp.) in response to the readings. These 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 class discussion. Alternatively, students may instead pursue independent research projects related to originalism, submitting first and final drafts (~30 pp.) in compliance with the upper-level writing requirement. Students choosing this option must do so prior to the close of the Drop/Add period.

Enrollment Prerequisite

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. (This prerequisite may be waived with permission of the instructor.)

Course Frequency*
Course Areas of Practice

Sections

Spring 2017
2017
Course Number Course Credits Evaluation Method Instructor Meeting Day/Times Room

758.01 3
  • Final research paper (25+ pages in length)
  • Shorter reaction papers
  • Class participation
Stephen E. Sachs W 10:30-12:20 PM 4046

Originalism is a major school of constitutional interpretation and a growing field of study. Both public discourse and legal practice commonly feature originalist arguments as well as criticisms of originalism. To engage these arguments, lawyers and citizens should be able to weigh the merits of a diverse set of originalist theories. This course is designed to acquaint you with a number of originalist and nonoriginalist arguments; enable you to judge for yourself the strengths and weaknesses of each; and give you an opportunity to sharpen your own views on the topic. It examines various originalist theories (original intentions, original meanings, original methods, and so on), different emphases in originalist argumentation over time (the “old” originalism vs. the “new”), and forms of argument used in support or opposition (conceptual, normative, positive). The course will be taught as a two-hour weekly seminar, focused on class discussion of the readings. Each student will choose weeks in which to submit a total of eight short papers (5-8 pp.) in response to the readings. These 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 class discussion. Alternatively, students may instead pursue independent research projects related to originalism, submitting first and final drafts (~30 pp.) in compliance with the upper-level writing requirement. Students choosing this option must do so prior to the close of the Drop/Add period.

Pre/Co-requisites

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. (This prerequisite may be waived with permission of the instructor.)

Enrollment Restrictions
None
2014
Spring 2014
Course Number Course Credits Evaluation Method Instructor Meeting Day/Times Room

758.01 3 Stephen E. Sachs W 10:00-11:50 am W 10:00-11:50 am Room 4046

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.

Pre/Co-requisites
None
Enrollment Restrictions
None

*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.