Neil S. Hecht

3 credits

This seminar will explore basic issues of jurisprudence as they arise in contemporary battles between originalism and its critics. What are the principal arguments for originalism and criticisms of it? What are the major varieties of originalism and alternatives to it? Does originalist analysis of “text and history”—as many originalists claim—avoid the need for normative judgments in constitutional interpretation? Or do originalists engage in “historical ventriloquism”—putting their normative arguments concerning text, history, and tradition in the mouths of historical framers, ratifiers, or lexicographers? We will consider such issues in three constitutional law contexts: the right to bear arms; substantive due process; and freedom of speech. (1) Originalism and the right to bear arms. The Supreme Court has based its major decisions protecting an individual right to bear arms on originalism. Do Heller v. District of Columbia, New York State Rifle & Pistol Association v. Bruen, and United States v. Rahimi vindicate originalism as yielding objective answers of historical fact about constitutional meaning or, to the contrary, do they suggest that history and originalism itself is a site of contestation between competing understandings of our constitutional commitments? How does the Court actually use history and tradition in these cases? (2) Originalism and basic liberties. The Court’s decisions protecting or rejecting basic liberties under the Due Process Clause have vacillated between two competing approaches: a narrow conception of “history and tradition” in Washington v. Glucksberg and Dobbs v. Jackson Women’s Health Organization and a broader conception of tradition as a “living thing”—to be elaborated through “reasoned judgment” in common law constitutional interpretation—in Planned Parenthood v. Casey and Obergefell v. Hodges. Does protection of the right of pregnant persons to decide whether to terminate their pregnancies or the rights of same-sex couples to marry necessarily reject originalism in favor of a moral reading of the Constitution? How does the Court actually use history and tradition in denying rights in Glucksberg and Dobbs? In service of originalism as commonly understood or instead in support of conservative moralism and traditionalism? Does the Due Process Clause or the Equal Protection Clause provide the better ground for protecting such basic liberties? What are the criteria for deciding between these grounds? (3) Originalism and freedom of speech. Originalism is notably absent from the Court’s decisions protecting freedom of speech, including those where it clashes with securing the status of equality for all, e.g., LGBTQ+ rights in 303 Creative LLC v. Elenis. What accounts for this absence? What might it suggest about the Court’s “selective originalism”? Are there better ways of accommodating conflicts between such constitutional values than the Court’s absolutist protection of freedom of speech to the exclusion of equality for all? UPPER-CLASS WRITING REQUIREMENT: This class may be used to satisfy the requirement. ** A student who fails to attend the initial meeting of a seminar, or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.