The Words That Made Us
Revisit key constitutional questions through the lens of history and law.
When Justice Amy Coney Barrett took the bench in October 2020, she solidified a 6-to-3 conservative majority on the Supreme Court. But her confirmation also brought to the forefront divisions within the conservative legal movement that have existed for decades.
In this course, students will explore the arguments and disagreements among conservatives and libertarians over how to best understand the Constitution generally and the judicial power specifically. Fellows will consider debates over originalism, natural law, traditionalism, and judicial restraint, and explore how those debates influence jurisprudence on some of the most contentious issues in American politics, from religious liberty to abortion, gun rights, and executive power.
Image Credit: Trump White House Archives | The Supreme Court as Composed October 27, 2020, Fred Schilling, Collection of the Supreme Court of the United States
Adam J. White interviews Hon. Don Willett
This course takes place on Zoom over five sessions, held on Mondays and Thursdays, from 6 to 8 PM ET. Fellows will receive a $500 stipend contingent upon participation in the course and completion of a brief response paper. All course materials will be provided.
Faculty
Adam J. White
Adam J. White is the Laurence H. Silberman Chair in Constitutional Governance and senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court and the administrative state. Concurrently, he codirects the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Adam J. White
Adam J. White is the Laurence H. Silberman Chair in Constitutional Governance and senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court and the administrative state. Concurrently, he codirects the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Mr. White practiced constitutional and administrative law, particularly in the regulation of energy and financial markets. He started his legal career as a law clerk for Judge David B. Sentelle at the US Court of Appeals for the DC Circuit.
Mr. White has testified often before Congress, including before the Senate’s Committees on the Judiciary; Commerce, Science, and Transportation; and Homeland Security and Governmental Affairs and before the House’s Judiciary and Financial Services Committees. In 2018, the Senate Committee on the Judiciary called him to testify in Brett Kavanaugh’s Supreme Court confirmation hearings to advise senators on Kavanaugh’s approach to administrative law.
In 2021, he served on the Presidential Commission on the Supreme Court of the United States, where he criticized “Court packing” and other efforts to restructure the Supreme Court. In 2017, he was appointed to serve on the Administrative Conference of the United States. He also serves on the leadership council for the American Bar Association’s Administrative Law and Regulatory Practice Section, which he will chair in 2023–24. Before joining AEI, he was a research fellow at Stanford University’s Hoover Institution and an adjunct fellow at the Manhattan Institute.
Mr. White has a JD from Harvard Law School and a bachelor of business administration from the College of Business at the University of Iowa.
Preview the Syllabus by Week/Session
Session I: Athwart
Readings:
- William Rehnquist, “The Notion of a Living Constitution” (1976)
- Alexander Bickel, “Close of the Warren Era” (1969)
- Martin Diamond, “Conservatives, Liberals, and the Constitution” (1965)
- Ed Meese, “Speech Before the ABA” (1985)
- Antonin Scalia, “The Rule of Law as a Law of Rules” (1989)
Discussion Questions:
- What were conservatives’ main lines of criticism against the Warren Court and “living constitutionalism”? What was the conservative alternative?
- What is judicial restraint? In deciding cases and controversies, how should judges go about exercising “merely judgment?” Is judicial restraint an answer to this problem?
- In a constitutional government based on popular sovereignty, how much power should we commit to the countermajoritarian body of judges and lawyers?
Session II: Originalism & Textualism
Readings:
- Antonin Scalia, “Originalism: The Lesser Evil” (1989)
- J. Harvie Wilkinson, “Originalism: Activism Masquerading as Restraint” (2012)
- Bostock v. Clayton County (2020) (excerpts)
Discussion Questions:
- What is originalism, and why does Scalia call originalism “the lesser evil”?
- Can the Constitution’s “objective” meaning be ascertained and applied by impartial judges? What should judges do when that meaning is not readily apparent—and, more important, how can they know when they’ve arrived upon such an ambiguous case?
- Is Wilkinson correct in arguing that originalism lacks judicial restraint?
- In Bostock, how did conservative, originalist justices land on opposite ends of the case?
Session III: Liberty & “Judicial Engagement”
Readings:
- Randy Barnett, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism” (2006)
- Randy Barnett, “Judicial Engagement Through the Lens of Lee Optical” (2012)
- Clarence Thomas, “The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment” (1989)
- Antonin Scalia, “Economic Affairs as Human Affairs” (1985)
- Richard Epstein, “Judicial Review: Reckoning on Two Kinds of Error” (1985)
Discussion Questions:
- What is “judicial engagement?” How is it different from judicial restraint or judicial activism?
- Should judges read the Constitution in light of natural rights theory or the natural law principles of the Declaration of Independence? Does such an approach constrain or empower judges?
- How should conservative jurists balance their devotion to a law’s original public meaning with other conservative principles in judicial decision-making (e.g., precedent, federalism, popular rule, etc.)?
- What was Scalia’s reason for caution against judicial recognition of economic rights? And what was Epstein’s rejoinder?
Session IV: “Common-Good Constitutionalism”
Readings:
- Pierce v. Society of Sisters (1925)
- Hadley Arkes, “A Natural Law Manifesto” (2011)
- Adrian Vermeule, “Beyond Originalism” (2020)
- Adrian Vermeule, “Supreme Court Justices Have Forgotten What the Law Is For” (2022)
- Adrian Vermeule, “Common-Good Constitutionalism: A Model Opinion” (2020)
- John McGinnis, “Originalism for the Common Good” (2022)
- Adrian Vermeule, “On ‘Common-Good Originalism’” (2020)
- Randy Barnett, “Deep State Constitutionalism” (2022)
Discussion Questions:
- In Pierce v. Society of Sisters, what was the constitutional source of the parents’ right?
- What is common-good constitutionalism? Is it properly constitutionalism? How does a judge determine a “common-good principle”?
- Is Vermeule correct that originalism is no longer useful for conservatives?
- What is the relationship between common-good constitutionalism and originalism?
Session V: Principle & the Weight of Precedent
Readings:
- Thomas W. Merrill, “Bork v. Burke”
- Amy Coney Barrett, “Originalism and Stare Decisis” (2017)
- Alexander Bickel, “Watergate and the Legal Order” (1974)
- Alexander Hamilton, Federalist No. 78 (1788)
- Abraham Lincoln, First Inaugural Address (1861)
Discussion Questions:
- What is conventionalism? Why should conservatives prefer conventionalism, according to Merrill?
- How strongly bound should judges be to the doctrine of stare decisis?
- How much deference should judges give to states and local communities? To practical experience and tradition?
- To what extent does the legitimacy of a democratic government rest on the consent of the people, and to what extent does it rest on the correctness of its principles?
- What would Hamilton’s version of judicial review look like in practice?
