Debating Originalism

It's not often that I get to go back to first principles, perhaps appropriately so in the First State, Delaware.

It was an eventful week, including a debate on “originalism vs. living constitutionalism” at Widener University Delaware Law School in Wilmington. A couple of weeks before the event, I learned that protests were being threatened when some members of the Black Law Student Union discovered my old tweets criticizing President Biden’s limitation of Supreme Court nominees by race and sex.

The law school’s administration worked with its Federalist Society officers to make sure the event went off without a hitch while respecting protestors’ speech rights, with listening sessions and education campaigns so everyone understood others’ concerns and all knew the school’s policy regarding protest vs. disruption. It was a bit overwrought and, in the end, there were about a dozen protesters and more than that number of security officers, some of whom were brought in from Widener’s main campus in Pennsylvania.

The event was structured as a formal debate between me and Prof. Alan Garfield, moderated by Prof. Paul Regan. Q&A was then filtered by the moderator; one rejected question: “do you think OJ did it?” Dean Todd Clark was gracious to me—I had met him at an event at his previous law school, where we debated DEI in higher education—and I commend him for his engagement with the Federalist Society. (I have some minor quibbles with the letter he sent to the law school community before my visit, but nothing important enough to fisk publicly.) More than 100 students and a host of faculty/administrators attended the event, by far the most-ever at this small school.

For those interested, here are my prepared remarks and notes making the case for originalism, not all of which I got to in my case-in-chief, with other parts making it into my rebuttal. Among other research sources, I’m heavily indebted to UVA Prof. Larry Solum’s testimony at Justice Neil Gorsuch’s confirmation hearings. —IS