Fordham Law School will offer a course on History, Originalism, and the Founders Constitution.
Here's the course description:
The theory of originalism has gained strength in recent years. Indeed, originalism now has adherents across the contemporary political spectrum, including scholars on the right as well as the left. There is really only one group of scholars largely immune to the lure of originalism: historians. At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. In practice most historians find originalist method deeply flawed. The course will explore the methodological questions raised by originalism and compare originalist method with orthodox historical practice. We will examine the application of originalism to variety of hot topics in law, issues such as foreign affairs, the First, the Second, the Tenth and the Fourteenth Amendment. In addition to sampling originalist scholarship on these topics we will look at how historians have viewed the same issues. The class will examine the relative merits and problems with each type of approach. Each student will write a research paper exploring these methodological issues within the context of a specific problem in American constitutional law or history.
Saul Cornell is the professor – an outstanding historian but (I think) not very sympathetic to originalist approaches to interpretation. It will take some work to avoid making this just a semester-long argument against originalism. (But even if that's all it is, it's a credit to the influence of originalism that a major law school is devoting a course to refuting it).
At the same time, Cornell is clearly on to something. Generally speaking, there's often a significant difference between the way historians approach the question of historical meaning and the way legal scholars approach it. I'm not sure it's helpful to frame the question as whether originalism is a good idea (as this course description seems to, though perhaps only for rhetorical purposes). Historians often aren't opposed to the idea of original meaning, or even to the idea of trying to use history to solve current legal issues (not least in "historian's briefs" to the Supreme Court). Rather, they tend to have a different idea of what it means to look for historical meaning. There are important insights to be had here, though not if the point of the course is to make originalism look bad, or even if the course is taught only from the perspective of a historian.
Posted at 7:00 AM