Forte Publishes Originalism in the Classroom

Professor David Forte

Professor David Forte has published Originalism in the Classroom in the current issue of Academic Questions.  In this article, Forte evaluates the way we have taught law in the twenty-five years since Attorney General Edwin Meese’s plea to return to “a Jurisprudence of Original Intention.”    Forte begins by looking at several US Supreme Court cases in the areas of church-state relations, 14th amendment Due Process, and abortion.  It is through these cases, he argues, that the Court reawakened ideas of originalism.  Following these cases, Forte writes, originalism became a legitimate and principled method of constitutional interpretation.  Following Meese’s speech, he asserts, originalism became the most principled form of constitutional analysis.

Forte next addresses the impact of originalism, arguing that substantial research has been done on the topic since the Court and Meese reintroduced and even championed it as a principled method of constitutional analysis.    That research has provided this generation of lawyers with a new and deeper outlook on the original meaning of the most significant clauses of the Constitution.  According to Forte, originalism and the research it engendered has changed the way attorneys argue cases in the Supreme Court and how the Justices decide them.

Forte delves into the role of originalism in the classroom by highlighting three major indicators of originalism’s reach and influence.  First, originalism now plays a major role in the cross-examination of federal judicial appointees, especially to the U.S. Supreme Court.  Second, the news media often opines on ‘originalism versus the living Constitution.’  Finally, presidential candidates are now all but obliged to discuss their judicial philosophy because it will influence their judicial appointments.  It is largely for these reasons, that originalism is due a prominent place in law school Constitutional Law classrooms.

Forte has performed a longitudinal analysis of the major Constitutional Law texts used in law schools.  This study revealed that although Constitutional Law texts have remained largely doctrinally focused, in the 1980s and 1990s, originalism gained more specific attention.  He directs much of his further attention to the six texts used more predominately at the top 50 ranked law schools, evaluating the degree to which they present originalism, and the method they use to do so.  He also surveyed a Constitutional Law professors listserve and learned that as in other disciplines coverage of originalism is limited by time, and of course, the interest of the professor.  He concludes that whereas some Constitutional Law professors praise originalism and others ridicule it, originalism is alive and well in American Constitutional Law classrooms.

You can view Professor Forte’s article at: http://www.springerlink.com/content/3j78557702021431/

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