History, Originalism, and the Founders Constitution
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 a 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.