While the Supreme Court appears to have four originalists (Barrett, Gorsuch, Kavanaugh & Thomas) along with two fellow travelers (Alito & Roberts), how many originalists are there in the legal academy? Most people have the impression that relatively few professors are originalists, and a new survey of law professors suggests that impression is correct.
In a survey of law professors from the top 20 and top 50 schools, one of the questions was “What theory should judges apply when interpreting the U.S. Constitution?” For professors from the top 20 schools: Living Constitutionalism was strongly accepted as an appropriate theory, where “strongly accepted” meant that more than 2/3 of the professors who answered accepted it. Common law constitutionalism was also strongly accepted. Pluralism was merely “accepted,” which meant that more than half of the professors who answered accepted it.
What were the results for originlism? Originalism was strongly rejected, meaning that more than 2/3 of the professors rejected it as an appropriate theory. Thus, living constitutionalism was strongly accepted; originalism was strongly rejected. No surprise there.
Similar results applied for professors from the top 50 schools.
How many professors indicated that originalism was an appropriate theory for interpreting the Constitution? Based on professors from the top 50 schools plus some other law professors, the results indicate that only 18.6 % of law professors believe originalism is an appropriate theory of constitutional interpretation.
Obviously, these results indicate that the law professoriate holds very different views than the current Supreme Court. So it should not be surprising that law professors will strongly criticize the Court.
Another question is how well the current crop of law professors can teach students about the originalist view often voiced by the Supreme Court. Of course, one does not have to agree with a view to teach it. But to teach it well, professors should be able to voice the originalist view as an originalist would voice it. Put differently, they should be able to do a good job of passing an ideological Turing test for an originalist.
It is a challenging task to teach a view one disagrees with. Here’s hoping that we — both originalists and nonoriginalists — are up to the task.
Posted at 8:00 AM