ADVANCED TOPICS IN CONSTITUTIONAL LAW: ORIGINALISM
(LAWC-4050) - 4 UNITS
What is "originalism"? What is the difference between "old originalism" and "new originalism"? Why have scholars asserted that Justice Brett Kavanaugh is not an originalist? What makes Justice Clarence Thomas a leading modern originalist This course examines ?original meaning? originalism as a theory of constitutional interpretation and how it differs from the Supreme Court's longstanding approaches to constitutional interpretation. It focuses on the differences between sources and methods of constitutional interpretation, the differences between specific intent originalism and original meaning (also known as "original understanding") originalism, and the historical and political underpinnings of originalism as a legal theory. Students will gain a descriptive understanding of the theories of originalism asserted by various legal scholars and Supreme Court justices as well as the substantive knowledge and analytical skills to recognize unprincipled legal decision-making and inconsistent application of originalist theories across different substantive areas of constitutional law.
If time permits, the class will also examine the theories of statutory interpretation embraced by many originalist scholars and jurists. This course is an opportunity for students who have already taken the required 4-unit course on Constitutional Law to examine new topics outside the scope of that course and to analyze previously studied Constitutional Law topics with which they are already familiar in greater depth such as the government's power to regulate guns, abortion, or marriage and heightened scrutiny of government classification based on race, gender, sexual orientation, or gender identity. Students who have not taken the required 4-unit course on Constitutional Law are welcome to take this course to enhance their knowledge of Constitutional Law and for exposure to discussion and modes of analysis that will better prepare them for taking the 4-unit Constitutional Law course in the future. Overall, this course will place a particular focus on the major theoretical and doctrinal disputes facing today's U.S. Supreme Court. The final exam for this course will be a take-home exam.