Originalism in the classroom
mortimer.sellers at gmail.com
Thu Dec 30 10:20:49 PST 2010
My impression is that most law students have heard of "originalism" (pro and
con), but have the same confused sense of it (pro and con) that most law
The framers were contintentalists and federalists, not localists. They were
republicans and whigs, not democrats. They were very sophisticated
political theorists, much better educated about political history (for the
most part) than we, whose constitutional ideas would be utterly subversive
of the pet ideas (left and right) of contemporary discourse, which is
why politicians, activists, and law professors (in particular) misunderstand
them so readily.
My advice to law students (and to this list): read the primary sources!
And have a happy New Year!
On Thu, Dec 30, 2010 at 12:52 PM, Robert Sheridan <rs at robertsheridan.com>wrote:
> Thank you. And thank you for straightening out my email addresss problem;
> that was very kind of you to sort it out and send it forward.
> As to students, while it's been awhile since I've taught a class, the
> general theory was that the students were there to see what I had to offer,
> instead of the other way around. We left the politics out of the equation
> while we discussed the cases, except to note that underlying politics drove
> the decisions whether we were talking John Marshall or William H. Rehnquist,
> and to a certain extent, all of our discussions. The latter so that they
> could take the proper discount.
> What I had to offer was an overall understanding of this case and the next.
> Whether a student agreed or disagreed, or wanted a new constitution
> entirely, hardly mattered, except that I'd be gratified if a student had
> gotten into a case sufficiently to have generated a thought as to its
> validity, much less challenge the whole underlying world in favor a new one
> In scanning your list of wishful thinking, one stood out: You advocate
> banning *in limine* motions in trials.
> I scratched my head.
> I've won matters *in limine* that have obviated long, ill-considered,
> prosecutions of criminal matters.
> *In limine* is where the court and counsel establish what the trial will
> consider and what it won't.
> Why do Jon Roland and his group oppose this? I wondered.
> Perhaps it's because Jon would not be permitted to argue that the direction
> of the law should have been elsewhere beginning with McCulloch, 1819. We
> don't have time in trials to litigate what we discuss here at our leisure.
> We have twelve people in the box plus alternates who need to decide facts,
> now, not legal theory that evan law professors cannot agree on.
> We need *in limine* motions, big time.
> On Dec 29, 2010, at 8:21 PM, Jon Roland wrote:
> On 12/29/2010 09:26 PM, Robert Sheridan wrote:
> What part of the above do the TPM types (for short) want to eliminate in
> the name of getting X right?
> None of what you list, because none of that is based in any significant way
> on the federal courts sustaining usurped powers. It is not all precedents
> for the last 200 years to which we object. The decisions in favor of
> individual rights are generally okay (although not all well-opined). The
> decisions in favor of powers of the Union government are generally not,
> starting with *McCulloch v. Maryland*<http://constitutionalism.blogspot.com/2010/12/unnecessary-and-improper.html>.
> We want no fiat currency, no criminal prosecutions based on the Commerce and
> Necessary and Proper clauses, no entitlements, no welfare, no farm
> subsidies, no federally-funded infrastructure projects except those needed
> for defense or defense-justified R&D, no regulation of anything but tangible
> commodities, no funding for education except training of militia, no
> undeclared wars, no administrative state that exercises *de facto*legislative powers, no income tax on compensation for labor.
> The Tea Party is a tad short on solutions. Randy Barnett and I seem to be
> the main ones proposing amendments. Mine are here<http://constitution.org/reform/us/con_amend.htm>
> Would you mind giving an example or two of what you consider a well-posed
> survey question designed to elicit a level of dissatisfaction concerning
> constitutional principles, please?
> For that purpose one would have to be custom-written, but you can get a
> sense of it from the one for a blog article, Judicial Reforms Needed<http://constitutionalism.blogspot.com/2010/06/judicial-reforms-needed.html>.
> Take the survey at the end and see how others have answered. You can get an
> account and compose your own for your students. I suggest you get some
> students to help you. You seem too out of touch with their concerns for
> -- Jon
> Constitution Society http://constitution.org
> 2900 W Anderson Ln C-200-322 Austin, TX 78757
> 512/299-5001 jon.roland at constitution.org
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University System of Maryland
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
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