It is no secret that, thanks to Justice Antonin Scalia, originalism is on the rise. This is true not only on the Supreme Court and the federal judiciary in general, but among state judiciaries as well.Yet, although there is more and more scholarship on the original understanding of the federal Constitution, there is almost no scholarship on the original understanding of our state constitutions. As state judges often lament, this makes doing their job very difficult: asking busy judges to do serious historical work themselves from primary sources is asking a lot. If Scalia’s vision is to be completed, it’s our state judiciaries that need the most help.
I have an idea to bring this assistance about: centers dedicated to studying the original understanding of state constitutions. They could be the legal counterpart to the movement to create departments and schools of “civics” at state universities.
Many legislatures in red states have created civics institutes.They tend to teach a lot of classes in American history and Western philosophy and some of them even offer undergraduate and graduate degrees. The motivations are many: to study topics that ideologically-captured humanities departments no longer study; to circumvent those same departments to more easily hire for viewpoint diversity; to implement the renewed interest in a core college curriculum. Although they are no panacea, they are probably a step in the right direction for those of us interested in curing the academy’s ills. The institutes are well resourced and all indications are that they will continue to be so.
But one of the limitations of the current institutes is that they do not have much to offer law students or legal scholarship. Although members of law school faculties sometimes teach in these institutes – and Ohio State’s is headed by one – they are focused on teaching liberal arts students and producing humanities scholarship.
My idea is to expand the energy around these schools into law and create centers dedicated to studying the original understanding of state constitutions. It is true that a few centers devoted to originalism already exist – e.g., at Georgetown and San Diego – but none of them are dedicated to state constitutions. Yet, as I noted, that is where the need is greatest.
As I envision them, the centers would be housed in flagship public universities, such as, in my state, the University of Tennessee at Knoxville. The centers would be devoted to studying the state’s own constitution and come with resources to hire new faculty to undertake historical research and to teach related classes. The centers could start by gathering the key primary sources for their constitutions into searchable databases like this one from the Quill Project. They could then move into publishing research that applies these sources to the various provisions of the state constitution. Most originalism scholarship today is devoted to methodological theory, but judges really need applied originalism. These centers could produce it.
Not only would these centers help state judges do their jobs, but they would serve the same purposes behind the civics institutes: the new faculty are likely to contribute to viewpoint diversity because conservatives are more interested in studying originalism; the new faculty can teach neglected topics such as originalism or state constitutional law; and, indeed, once centers are up and running, universities might even be able to require law students to take state constitutional law before they graduate as part of the core curriculum.
I am largely agnostic as to whether these centers are housed in the new civics institutes or in law schools.There will be more pedagogical and scholarly synergies if they are housed in law schools, but, as I noted, one of the reasons why the civics institutes were created in the first place is because existing university departments were often not open to viewpoint diversity. For example, even though originalism is the dominant mode of interpretation in the federal judiciary, originalists make up a small percentage of constitutional law professors. It is possible that some law school faculties will refuse to hire the originalist scholars needed to fill the centers. Thus, the best home may vary from state to state depending on the open-mindedness of the faculty at the state’s flagship law school.
There is also a question where all the new originalist faculty will come from. Because there has been so little interest among law school faculties in originalism despite its ascendance in the courts, there are not many scholars who specialize in it. But this is a chicken-and-egg problem: if law schools started looking for originalist scholars, scholars would start specializing in originalism. In other words, I am not worried about the supply once the demand materializes.
Although I believe red-state legislatures that have already created civics institutes will be the most interested in originalism centers, they really could and should be of bipartisan appeal. Even in blue states, courts look to the original understanding when interpreting their constitutions. As the recent right-wing unhappiness with Supreme Court Justice Amy Coney Barrett shows, there is nothing about originalism that is inherently right-wing. Rather, I think these centers could be a service to judges and students in red states and blue states alike. They would also make Justice Scalia very happy.
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