FedSoc Hosts Annual Originalism Event

At a Federalist Society talk on August 27, Professor Saikrishna Prakash introduced students to Originalism, its many “flavors,” its promise to constrain judges, and its most common critiques. Despite not being an Originalist, I decided to attend in part because I want to make a conscious effort to listen to ideas from across the spectrum and try to learn, and also because there was free food (thank you, Leonard Leo). However, this skeptic left the event unconvinced.

The Pitch

 Professor Prakash’s lecture began with a basic definition of Originalism, which is the doctrine holding that “legal documents should be interpreted according to original meaning at time of adoption. It’s fixed, though its application may change over time.” Referencing Baskin Robbins Ice Cream, Professor Prakash noted that there are “31 flavors” of Originalism to choose from: original public meaning, original methods, and original intent, to name a few. Professor Prakash joked that while one can find five originalists on the Supreme Court and many on the federal bench, it would be tough to find five in legal academia. He then proceeded to list numerous professors at UVA who could’ve done the Originalism lecture in his stead (better, he argued). Finally, he launched into the meat of his lecture, first by asking why folks prefer Originalism. He posited that the core justification for the doctrine is that judicial preference does not matter, and it thereby constrains power of judges. This portion of the lecture was quite short, in my view. I was expecting a full-throated defense of the doctrine, but perhaps this is no longer needed because, as Justice Elena Kagan said, “We are all originalists now.”

The Critiques

 Professor Prakash then pivoted to the question of why other people reject Originalism, which actually took up a majority of the event’s time. First, he described the “dead hand problem” which says that because the world is vastly different than it was at the time of the ratification of the Constitution, it does not make sense to be guided by views from 200 years ago, especially because those folks are dead and exclusively white men.

One such critique that was noted by Professor Prakash was the Framers’ inability to foresee modern weaponry. Ironically, it was at this moment that I became distracted by my phone flashing with news of yet another mass shooting, this time at a church in Minneapolis. Professor Prakash continued with the general critiques, the next being that history is not objective or easily knowable, and that judges are not historians, and thus they are not good arbiters of what is historically true. Finally, Professor Prakash acknowledged that Originalism can lead to unjust outcomes.

Q&A

 For the question-and-answer portion, a 1L asked for a book recommendation to become more familiar with the doctrine, and Professor Prakash said to wait for Professor John Harrison (also in attendance) to write it, which generated chuckles from the crowd. He then said that perhaps the book, The Tempting of America by Judge Robert Bork, would be a good book to start with, but cautioned that it was a bit dated (an ironic critique for an Originalist to level against a document). Finally, Professor Prakash settled on what seemed to be his actual answer, which was that a student would be best served by reading five articles from five authors. From the crowd, Professor Harrison recommended a few articles by UVA Law’s Professor Lawrence Solum and agreed that there is no one good book for one to start.

What I Wanted to Hear

 Perhaps it was because it was a yearly event by the club, but I found myself wanting. I genuinely wanted to hear a hard defense of the doctrine, which I did not find at this event. Professor Prakash was clearly outrageously intelligent but I found the event to be analytically shallow. I had hoped to feel swayed, even a little, toward the Originalist cause, but I was not. I hope that in the future, the Society will host a full-fledged defense, or perhaps a debate (it is termed a “debating club” after all) on the topic. But I suppose I will continue down my legal path unconvinced, for now.

Guest Contributor — Kirk Wolff

wzw8mp@virginia.edu