Originalism: A Critical Introduction

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics

Free Speech and the Diverse University

There are those who think that free speech and inclusivity on college campuses are inconsistent. The notion that the two values are in tension with one another has become a common framing for thinking about the modern campus. A Gallup-Knight Foundation poll of college students asked respondents not only whether they valued free speech or diversity but also to choose between them and indicate which was “more important for colleges.” When forced to choose, a substantial minority of students said they would prioritize inclusivity over the freedom to express “viewpoints that are offensive” on campus. Following the Gallup-Knight poll the American Council on Education put a similar question to college presidents. University leaders overwhelmingly insisted that if forced to choose they would prioritize allowing students “to be exposed to all types of speech.” Those pollsters were hardly alone in wanting to focus attention on “when core values collide.” Much of the debate surrounding campus free speech in recent years has assumed that choices must be made between speech and inclusivity and has moved on to argue over which should take priority. This Article proceeds in three Parts. Part I explores the need for universities to clearly articulate their position on free speech. Part II explains why it is crucial to integrate community members into an inclusive intellectual culture. And Part III identifies discrete administrative steps that must be taken to implement these policies

Yet Another Constitutional Crisis?

The recent presidential impeachment and the postelection controversy each led many to fear that the United States had either already entered or was about to enter a constitutional crisis. Such concerns seem overwrought. This Article will use those events as a foil for examining the nature of constitutional crises. The Article will distinguish two types of constitutional crises and consider several potential crises in American history, clarifying how crises occur and how they can be averted. Constitutional crises in the United States are rare in large part because of the robustness of the country\u27s informal constitutional practices, reasonably good constitutional design, and relatively limited political disagreement

Give The People What They Want?

Larry Kramer\u27s The People Themselves argues that popular constitutionalism has been the dominant tradition over the course of American history, being eclipsed by judicial supremacy only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that Kramer emphasizes. It then shows that these are relatively rare features of American politics. Under more common political conditions, party leaders have ample incentives to encourage the growth of judicial supremacy precisely in order to advance the substantive constitutional commitments to which those political leaders adhere

Give The People What They Want?

Larry Kramer\u27s The People Themselves argues that popular constitutionalism has been the dominant tradition over the course of American history, being eclipsed by judicial supremacy only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that Kramer emphasizes. It then shows that these are relatively rare features of American politics. Under more common political conditions, party leaders have ample incentives to encourage the growth of judicial supremacy precisely in order to advance the substantive constitutional commitments to which those political leaders adhere