Originalism and its critics: My dialogue with Eric

April 9, 2014

As readers likely noticed, I spent much of last quarter blogging about a course that Eric Posner and I were co-teaching on originalism. Some of you commented that you found the posts useful and wish they were collected somewhere; others commented that there were just too many posts to keep track of. In any event, for those who are interested, here is a collection of the posts. (And here is the syllabus.)

Week 1: Introduction to the Method (Heller)

Eric Posner: Originalism Seminar Class 1:Heller
Will Baude: Heller as an Advertisement for Originalist Methodology
Eric Posner: Originalism: History vs. Law

Week 2: The Federalist Papers (Printz)
Will Baude: Printz, Commandeering, and the Federalist
Eric Posner: Originalism Class 2: Printz As A Paean To The Living Constitution

Week 3: Precedent (Casey, MacDonald)
Eric Posner: Originalism Class 3: Precedent
Will Baude: Precedent is not a threat to orignalism

Week 4: Non-Originalist Judging (Brown, Plessy)
Will Baude: Does originalism justify Brown, and why do we care so much?
Eric Posner: Originalism Class 4: Brown
Will Baude: Originalism, the bear principle, and the reading of entrails
Will Baude: Originalists need not be naïve perfectionists
Eric Posner: Response to Will’s Response to my Class 4 Comments

Week 5: Recess Appointments (Noel Canning)
Eric Posner: Originalism Class 5: Noel Canning
Will Baude: Recess appointments and the size of government
Eric Posner: Reply to Will on Noel Canning

Interlude:
Eric Posner: Originalism and precedent: Baude v. Sunstein
Will Baude: Originalism, false dichotomies, and the question of who decides

Week 6: The Case for Originalism (Lawson, Alexander, Scalia, Sachs)
Will Baude: Reasons for being an originalist
Eric Posner: Class 6: Reasons for being an originalist
Will Baude: Originalism in our legal culture: The case of the Ground Zero mosque

Week 7: What Are the Alternatives? (Strauss, Waldron, Ackerman)
Eric Posner: Originalism Class 7: The Evolving Constitution
Will Baude: Originalism and Its Critics: The Critics’ Turn

Week 8: Accounting for Change (Balkin, Lessig, Green)
Will Baude: Originalism and ‘Accounting for Change’
Eric Posner: Originalism Class 8: Accounting for Change
Will Baude: Originalism and the rule that government actors don’t change the Constitution
Eric Posner: Is there a rule that government actors don’t change the Constitution?
Will Baude: When a change in constitutional practice is legally invalid

Week 9: Culture and Amendments (Meese, McGinnis & Rappaport, etc.)

Eric Posner: Originalism Class 9: Between Phony and Naive
Will Baude: Originalism: the theory and the politics

There is a similar list on Eric’s blog. I really enjoyed both the course and the dialogue.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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Eugene Volokh · April 9, 2014