Seminar in Constitutional Law: Constitutional Interpretation & Democracy

To understand the law of the Constitution, it is necessary to understand the debates over how the Constitution should be interpreted. The two best-known, and competing, theories of American constitutional interpretation are typically called originalism and the living Constitution (or dynamic constitutional interpretation). Those labels are something of an oversimplification, as there is considerable diversity and disagreement within these two camps as well as between them.

In this seminar, we will read the discuss works by some of the most prominent and interesting proponents, as well as critics, of various forms of originalism and of the dynamic/living constitution theories. We will also venture beyond those particular debates to consider a few related questions concerning the role of courts in a democracy, such as: Should the Constitution be majoritarian or counter-majoritarian ? How do social movements and changing public attitudes affect Supreme Court decision making?

Readings will consist of articles and book chapters distributed via Canvas. Grading will be based on a seminar paper (proposal, first draft, final draft) and contributions to our weekly seminar discussions. The seminar may be especially useful for students seeking to write a journal note and/or wishing to prepare a substantial writing sample for judicial clerkship applications.