National Student Symposium 2010: Events

Roundtable: Originalism: A Rationalization for Conservatism, or a Principled Theory of Interpretation?

One of the criticisms of originalism is that it simply is code for conservative ideology. Pointing to figures such as Justice Scalia, some characterize originalism merely as a tool of the Republican Party, suggesting that all originalist jurisprudence is also politically conservative. The first question for originalism is what justifies originalism as a theory of constitutional interpretation as opposed to a political program. Originalists have advanced a variety of justifications for originalism. Some justify it on the basis that originalism is implicit in the use of language. Others suggest that originalism is to be preferred, because it is the theory that delivers the clearest rules. This panel will explore such justifications as well as critiques of originalism.

Originalism and Construction: Does Originalism Always Provide the Answer?

Recently, the so-called “new originalists” have embraced a concept called constitutional construction. Constructionist originalism responds to the claim that the original public meaning of some parts of the Constitution is vague or ambiguous. Constructionist originalists argue that interpreters are bound by the original meaning of the constitution only when it is clear. When it is unclear, interpreters must resort to non-originalist materials to determine the Constitution's meaning. Other scholars have attacked construction as permitting resort to illegitimate methods of interpretation within originalism. This panel will explore the rationales for and problems of construction-the most important current development in originalist theory.

Does the Originalism of the Fourteenth Amendment Guarantee Justice for All?

Often, critics argue that originalism will trap us in the sins of societies past, doomed to repeat some of history’s mistakes. If originalism cannot adequately meet these challenges, some would argue that it is significantly lacking as an interpretive theory. The Fourteenth Amendment is the provision of the Constitution often used to correct these injustices. This panel will examine the importance of the Fourteenth Amendment for the theory of originalism. For instance, does it transform the meaning of previous amendments? Are there distinctive interpretive rules for the Fourteenth Amendment? Can Fourteenth Amendment be interpreted in an originalist manner to provide equal justice for all?

Originalism, Precedent and Judicial Restraint

We often hear much about the perils of “judicial activism” and how a judge’s proper role is as interpreter of law, not maker of law. However, in a world where much binding precedent has been decided on grounds other than original intent, this restrained view of the judiciary is sometimes thought to stand often in stark contrast with the originalist movement. Originalists have had two ways of treating precedent. One is to dismiss non-originalist precedent as inconsistent with originalism. This approach would allow judges to dramatically change the law. A second approach is to suggest that precedent can be reconciled with originalism. But this approach would require determinate rules to prioritize originalism and precedent. This panel will explore the conflict between a restrained judiciary and original constitutional interpretation as well as possible means through which the two may be reconciled.

Debate: Originalism in Criminal Procedure: Ancient Checks or Newfangled Rights?

In recent years, the Supreme Court has relied on originalist arguments in ruling for defendants on issues of Fourth Amendment searches and seizures, Sixth Amendment confrontation and cross-examination, and Sixth Amendment jury-trial guarantees at sentencing. Originalists claim that these rulings are essential to reintroduce checks on governmental power, to protect defendants, and to reinforce juries. Critics object that the constitutional text and history provide only weak foundations for these new rights, that there are multiple plausible originalist approaches to each of these clauses, and that these rights misfire when superimposed on the modern criminal justice system. This debate will weigh the pros and cons of originalism and its appropriate role in interpreting the criminal procedure provisions of the Bill of Rights, particularly the Fourth and Sixth Amendments.

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