University of Pennsylvania Museum of Archaeology and Anthropology
3260 South St
Philadelphia, PA 19104
3260 South St
Philadelphia, PA 19104
The 2010 Federalist Society National Student Symposium, “Originalism 2.0,” took place at the University of Pennsylvania on February 26-27, 2010.
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6:30 p.m. - 8:45 p.m.
Welcome & Panel I (Roundtable) - Originalism: A Rationalization for Conservatism, or a Principled Theory of Interpretation?
2010 National Student Symposium
| Topics: | Federalist Society • Founding Era & History • Jurisprudence • Philosophy |
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University of Pennsylvania Museum of Archaeology and Anthropology
3260 South St
Philadelphia, PA 19104
3260 South St
Philadelphia, PA 19104
Event Video
Description
Welcome and Introduction
- Mr. Ryan Ulloa, Symposium Director, University of Pennsylvania Law School
- Dean Michael A. Fitts, University of Pennsylvania Law School
Panel I - Originalism: A Rationalization for Conservatism or a Principled Theory of Interpretation?
One of the criticisms of originalism is that it simply is code for conservative ideology. Pointing to figures such as Justice Scalia, some characterize originalism merely as a tool of the Republican Party, suggesting that all originalist jurisprudence is also politically conservative. The first question for originalism is what justifies originalism as a theory of constitutional interpretation as opposed to a political program. Originalists have advanced a variety of justifications for originalism. Some justify it on the basis that originalism is implicit in the use of language. Others suggest that originalism is to be preferred, because it is the theory that delivers the clearest rules. This panel will explore such justifications as well as critiques of originalism.
- Prof. Mary Anne Case, University of Chicago Law School
- Prof. Richard Fallon, Harvard Law School
- Prof. Saikrishna Prakash, University of Virginia School of Law
- Prof. Keith Whittington, Princeton University
- Moderator: Hon. Greg Garre, 44th Solicitor General of the United States
Speakers
9:00 a.m. - 10:00 a.m.
Debate - Originalism in Criminal Procedure: Ancient Checks or Newfangled Rights?
2010 National Student Symposium
| Topics: | Constitution • Criminal Law & Procedure • Fourth Amendment • Separation of Powers • Federalism & Separation of Powers |
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University of Pennsylvania Museum of Archaeology and Anthropology
3260 South St
Philadelphia, PA 19104
3260 South St
Philadelphia, PA 19104
Event Video
Description
In recent years, the Supreme Court has relied on originalist arguments in ruling for defendants on issues of Fourth Amendment searches and seizures, Sixth Amendment confrontation and cross-examination, and Sixth Amendment jury-trial guarantees at sentencing. Originalists claim that these rulings are essential to reintroduce checks on governmental power, to protect defendants, and to reinforce juries. Critics object that the constitutional text and history provide only weak foundations for these new rights, that there are multiple plausible originalist approaches to each of these clauses, and that these rights misfire when superimposed on the modern criminal justice system. This debate will weigh the pros and cons of originalism and its appropriate role in interpreting the criminal procedure provisions of the Bill of Rights, particularly the Fourth and Sixth Amendments.
- Prof. Stephanos Bibas, University of Pennsylvania Law School
- Prof. Jeffrey Fisher, Stanford Law School
- Moderator: Prof. Christopher Yoo, University of Pennsylvania Law School
Speakers
10:15 a.m. - 12:00 p.m.
Panel 2 - Originalism and Construction: Does Originalism always provide the Answer?
2010 National Student Symposium
| Topics: | Constitution • Founding Era & History • Jurisprudence • Philosophy |
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University of Pennsylvania Museum of Archaeology and Anthropology
3260 South St
Philadelphia, PA 19104
3260 South St
Philadelphia, PA 19104
Event Video
Description
Recently, the so-called “new originalists” have embraced a concept called constitutional construction. Constructionist originalism responds to the claim that the original public meaning of some parts of the Constitution is vague or ambiguous. Constructionist originalists argue that interpreters are bound by the original meaning of the constitution only when it is clear. When it is unclear, interpreters must resort to non-originalist materials to determine the Constitution's meaning. Other scholars have attacked construction as permitting resort to illegitimate methods of interpretation within originalism. This panel will explore the rationales for and problems of construction-the most important current development in originalist theory.
- Prof. Randy Barnett, Georgetown University Law Center
- Prof. Lino Graglia, University of Texas School of Law
- Prof. Caleb Nelson, University of Virginia School of Law
- Judge A. Raymond Randolph, U.S. Court of Appeals, DC Circuit
- Prof. Kermit Roosevelt, University of Pennsylvania Law School
- Moderator: Judge Diane Sykes, U.S. Court of Appeals, Seventh Circuit
Speakers
1:45 p.m. - 3:30 p.m.
Panel 3 - Originalism, Precedent and Judicial Restraint
2010 National Student Symposium
| Topics: | Constitution • Federal Courts • Jurisprudence • Philosophy • Supreme Court |
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University of Pennsylvania Museum of Archaeology and Anthropology
3260 South St
Philadelphia, PA 19104
3260 South St
Philadelphia, PA 19104
Event Video
Description
We often hear much about the perils of “judicial activism” and how a judge’s proper role is as interpreter of law, not maker of law. However, in a world where much binding precedent has been decided on grounds other than original intent, this restrained view of the judiciary is sometimes thought to stand often in stark contrast with the originalist movement. Originalists have had two ways of treating precedent. One is to dismiss non-originalist precedent as inconsistent with originalism. This approach would allow judges to dramatically change the law. A second approach is to suggest that precedent can be reconciled with originalism. But this approach would require determinate rules to prioritize originalism and precedent. This panel will explore the conflict between a restrained judiciary and original constitutional interpretation as well as possible means through which the two may be reconciled.
- Justice Stephen Markman, Michigan Supreme Court
- Prof. Mike Rappaport, University of San Diego School of Law
- Prof. Jeffrey Rosen, George Washington University School of Law
- Prof. David Strauss, University of Chicago Law School
- Moderator: Judge Gene Pratter, U.S. District Court for the Eastern District of Pennsylvania
Speakers
3:45 p.m. - 5:30 p.m.
Panel 4 - Does the Originalism of the Fourteenth Amendment Guarantee Justice for All?
2010 National Student Symposium
| Topics: | Civil Rights • Constitution • Fourteenth Amendment • Jurisprudence • Philosophy |
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University of Pennsylvania Museum of Archaeology and Anthropology
3260 South St
Philadelphia, PA 19104
3260 South St
Philadelphia, PA 19104
Event Video
Description
Often, critics argue that originalism will trap us in the sins of societies past, doomed to repeat some of history’s mistakes. If originalism cannot adequately meet these challenges, some would argue that it is significantly lacking as an interpretive theory. The Fourteenth Amendment is the provision of the Constitution often used to correct these injustices. This panel will examine the importance of the Fourteenth Amendment for the theory of originalism. For instance, does it transform the meaning of previous amendments? Are there distinctive interpretive rules for the Fourteenth Amendment? Can Fourteenth Amendment be interpreted in an originalist manner to provide equal justice for all?
- Prof. Akhil Reed Amar, Yale Law School
- Prof. Jack Balkin, Yale Law School
- Prof. Steven Calabresi, Northwestern University School of Law
- Prof. John Harrison, University of Virginia School of Law
- Moderator: Prof. Amy Wax, University of Pennsylvania Law School
Speakers
7:00 p.m. - 10:00 p.m.
Banquet Address by William Kristol
2010 National Student Symposium
| Topics: | Constitution • Federalist Society • Philosophy • Politics |
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Philadelphia Marriott Downtown
1201 Market Street
Philadelphia, PA 19107
1201 Market Street
Philadelphia, PA 19107
Event Video
Description
- Mr. Bill Kristol, Editor, The Weekly Standard and Commentator, Fox News
- Introduction by: Mr. Eugene B. Meyer, President, The Federalist Society
Speakers
7:00 p.m. - 10:00 p.m.
2010 Bator Award Presentation
2010 National Student Symposium
| Topics: | Federalist Society |
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Philadelphia Marriott Downtown
1201 Market Street
Philadelphia, PA 19107
1201 Market Street
Philadelphia, PA 19107
Event Video
Description
The Paul M. Bator Award was established in 1989 in memory of Professor Paul M. Bator, a renowned scholar and teacher of federal courts and constitutional law. Professor Bator taught at Harvard Law School from 1959 to 1982 and from 1983 to 1985, and at the University of Chicago from 1985 until his untimely death in 1989. He also served as Principal Deputy Solicitor General in 1982 and 1983. The award is given annually to a young academic (under 40) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made a significant public impact. This award is presented during the Federalist Society's Annual Student Symposium.
- Prof. M. Todd Henderson, University of Chicago Law School
- Introduction by: Mr. Prerak Shah, University of Chicago Law School Student Chapter
