To always be learning ahead by resetting the National Constitution and mission statement. Here we go. National Constitution Center is the only center in chartered by congress to increase awareness and understanding of the constitution among the American People on a nonpartisan nonpartisan basis. We have programs coming up in july, next thursday, july 6 we host a conversation on this and the constitution. On july 13, we have our Supreme Court annual review with the adl, an allstar cast. An hour we the people podcast that will be covering the Supreme Court decisions over the next days and weeks. Be sure to tune into that as well. We will collect russians throughout the discussion today and put them in a box. We will get to them as many as we can. It is an honor to introduce our dream team panel to learn about the various strands of originalism. We have assistant professor of law and codirector of constitutional and the catholic intellectual condition with the Columbus School of law. He is a fellow at the Columbia School of law for religious liberty. A fellow of the American Enterprise institute and the director of the Spanish Institute mentoring and leadership. He previously practiced serves for samuel alito. And we have dr. Robert, at the cato institute. Before she joined cato she was a civil rights attorney where she cocreated the superb podcast. You can check it out from her writings in the future and the washington post. This was june journal, and many others. And the associate professor of law is calling what is marriage, men and women of defense and debating religious liberty and discrimination. And also served as a law to Justice Alito. Thank you for joining us. I would love to begin by helping our audience understand the various strands of originalism and been explore the intellectual evolution. Why dont we begin with you. Just yesterday, in the war be hard for case, we saw very different approaches to the chief Justice John Roberts in the majority and just as thomas leading. How would you distinguish between the originalism of chief Justice Roberts and the contextualism of Justice Thomas and how that mixes into originalism and textualism today. Guest thank you for inviting me to be part of this. I would begin by saying we classify cheap as originalism but he would not classify himself as originalist. But i think it is fair to classify both as originalists and they joined the chiefs opinion in more dissent by Justice Thomas joined by justice full and, Justice Alito following only on the jurisdictional question. There is real disagreement between those two sets of originalist. I should quickly note that my firm litigated more so just for full disclosure on that. I think that with the disagreement in that case shows is one way in which it can be classified which is how they approach president. That is a Major Division against in originalism the extent to which you take on board prior precedent. Now Justice Thomass dissent was thought that the prior president could be reconciled with the position that he thought was a better reflection of the original meaning. But i think you saw a broader conception of president and the force of precedent in the do justice opinion. That seems to be based on what we have seen so far, that probably were flex how justice kept an approach. They seemed to have a broader at stronger understanding of that rather than Justice Thomas or just disgorge it. Host thank you for that, how would you characterize the various strands of originalism . There was a check she was focused for Justice Thomas and Justice Alito where they were asking with the word legislature meant whereas the majority were asking with the word legislature meant at the time of founding and how it had been interpreted by the state constitution and the president precedent. And Justice Barrett perhaps called herself and originalist. How would you unpack that . Sure think you for having me. I will start by saying when originalism really arose to prominent prominence most recently it was intent originalism and it was trying to determine the intent of the framework. Given the various difficulties with that theory, first of all, there are many frameworks. How do we distinguish whose intent or whether the majority intent was . There is now the difficulty analytically but another difficulty is that it is not really fair to hold people to the original intent of the framework because they would or not expressed. Pardon me. It could be handled with all odds to that context that we can be aware of what the governing rules are. Because of difficulties, there was a change from original intent originalism and public meaning originalism which tried to ascertain the meaning of the word in the constitution when those words were ratified. I would say that is the dominant strain of originalism right now and the form of contextualism, of course. And i think that is the one you see most prominently in academia and at the Supreme Court. Something i am particularly interested in, i have seen a shift in originalism since the Supreme Court decision last term where there is a focus on history and tradition in a way that i do not think conforms to in traditionally used within original public meaning originalism. That means usually the justice will look at the practice, sure, but that is to determine the original public meaning of the word. We saw the court say that a law will only be upheld if there was a historical analog. I think that is something new and different. It is showing up in various cases of this term and it is something that i would be happy to explore more in this discussion. Host thank you for that. We put on the table already to instances along originalist, first they said there is the approach to precedent and be role of history and tradition as opposed to the original public meaning at the time of ratification. How would you identify the various strands of originalism and is there a division among them in their approach to reading the text at the time of ratification as interpreted historically over time or simply its ordinary meaning to the dictionary what would it mean to an ordinary reader today . Sure i want to add to everyones thanks for being included in this. The National Constitution center is doing amazing work. I think what has been identified so far would be dimension along which originalist give what the object of it is. Are you looking for the original intent of the framers and their goal or are you looking to the meaning to the members of the public at the time of the text that they adopted . I agree with the other speaker that the emphasis is on the latter. And not just me in particular, but i think it will be reflected in court practice, there is a question about nontextual factors and what role they have. Everyone agrees who is originalist agrees that there is a reporting to the founding era that era in which it was ratified. And that kind of authority wanted those at the time to trump other factors. And even with the russians about whether you can consider the original meaning of the text and the original tools of interpretation that prevailed when the text was adopted. For example, a few look to background principles of the common law. Do you assume that the criminal statute will only govern with analog constitutional. Will only govern conduct within the jurisdiction . Like that. This starts to connect with what i was saying about the role of history. Obviously, in early history, it was the evidence of original meaning. It was the first where congress voted up the First Amendment the established of equality and it also began legislative sessions with air and most elite journalists originalist think that is not rollout would legislative prayer. But what about the rule of later history . Is it one of the factors that the founders or other ratify years of the text would have thought was fair game for a court that was trying to fill gaps in the text . Does history have some other role to play when the text and its original meaning in the original criteria for interpretation run out and so on. Host very interesting. Thank you so much. Lets put a concrete case on the table and discuss it as a window to the greatest parts of originalism. That is the Second Amendment with the case of the court they recently decided in new york the concealed carry law. There was a vigorous debate between Justice Thomas and the geordie who argued that both the original public meaning of the Second Amendment and its historical loss over time required judges to look at historical analogs for restrictions on the Second Amendment and the right to bear arms. Throughout the range, not only american history, but also dating back to the statue of cumberland. And they say and that they were just playing fast and loose with originalism and then changing the baseline about what period of time mattered in order to reach the third the preferred result. How would you describe the majority and who have a better argument . Guest part of the debate is a methodological debate about the originals themselves and injustice priors dissent it takes issue with what he views as overreliance on history and historical meaning and interpreting the Second Amendment. No surprises Justice Pryor has always been a critic of originalism and has always viewed the Second Amendment more through an interest bound approach. Weighing various risks of harm and benefits to come up with what he would view as the best, most reasonable policy. I do not think that is mischaracterizing. I think that is how you would generally view the constitutional education more broadly. I think there are a lot of methodological russians left on questions left unresolved that we have to look to subsequent cases to see how they are hashed out. One that is an example, this is something that we were just talking about, what role does historical practice have after 1791 in the Second Amendment when it was ratified in 1868 when the 14th amendment was ratified is another example area the reason those are the two major time period because in when the Second Amendment was initially ratified it only went to the federal government. And this the Supreme Court said that the 14th amendment incorporates the Second Amendment against the states. So, there is an interesting original logical question about when we are trying to figure out how to with the states, are we focused on the meaning of the Second Amendment in 1868 or in between 91 . That 1791 . That helps you figure out what kind of practices are relevant. One is those are two 7091 or in 19 1868. What about the period of time in between that. And that really does not resolve the questions. Those are major methodological russians going forward. Host thank you. Guest what about that question . Host there is the historical liquidation of what History Matters after there was ratification benchmarks of 1791 and 1868. What do you think of the way Justice Thomas treated history and the majority of his opinion . What do you think the right answer is for history in the original list of liquidation . Guest i think it is right that Justice Barrett wrote separately to state that concern. It is something she has written separately at this term many times to emphasize we need to get the timing and methodology right to make sure we have a coherent theory that is consistent and respected. But more concerning lee, Justice Thomas did Something Different entirely with originalism in my opinion which is overreliance on historical practice. Not just looking at historical practice at any given time period to look at what the words mean but to say that it will only tell if there is a historical catalog. I think the problem with that is historical practice cannot be determinative because sometimes, the government can get it wrong. Or the court get it wrong. So you consider Something Like the slaughterhouse cases where the Supreme Court gutted that clause in a way that almost everyone acknowledges to be wrong. We cannot now rely on historical practice to say that that informs the original public meaning because it is contrary to original public meaning. Or to have Racial Discrimination in up and around 11. The fact that the government may have been the equal protection in. It is not what the People Protection clause required. Even some of the practices cited by Justice Thomas himself, he cited the historical practice and denying gun rights for the various minorities. Those practices are not uncommon those actresses are unconstitutional and we will not practice the meaning of the issue. And one of other things i will add, when there is new technology, there will not be history to rely on because it will not have been previously regulated. I think it is something new, different, incorrect. It is analytically wrong. We do not codify practices. It does not say that the government is doing all that the only the things it was doing or could not do. Where it was ratified. The constitution ratified principles. The principle calls can yield different results at different times. The application may change. I think the over estimate on historical practice is long headed. Host very interesting. Help us to understand Justice Thomas is approach to historical practice in ruin where he looked to historical practice in around 1900 around gun regulation. A case like more where he did not look to practice at all including the practice of judicial review were reviewers and simply looked at the word legislature. How in particular does Justice Thomas decide the question of when it is relevant to history and what period of history should we look to . Guest guest anna moore in particular i think what he would say is that when the original meaning of the text is clear, the historical practice, whether at the time or much later cannot override that. I suspect that using the word legislature is there enough that later and in temporary practice it cannot override it. It seems to be history seems to be playing a couple different roads. On one side it sounds like it is doing something that is totally benign. And looking to practice at the time of ratification to figure out what people thought of the text that was ratified. And what it meant. At other times it looks like it is doing Something Different. The first major Supreme Court case, on the Second Amendment, it is to say the Second Amendment codified the existing right referring to the freedom of the people to keep a and bear arms. That right, that word, that phrase is a shorthand for the right of constitute by practices that lead up to ratification. That is one other role that practices might play. Another you mentioned liquidation and the idea that if the text is in the air, the practice is maybe even of later generations can be regarded as filling in gaps in the meaning. We stick by those practices unless we have a strong reason to override them the same way we do with judicial president s. Precedents. But i agree in some majority that history is playing a different role that is harder to justify by original his. Originalists. If we have a long history of regulating a certain way even if it is a history that erodes very late after ratification, that could justify that regulation that is similar to that today. But if we do not have a long history of a regulation of assert kind, then, the kind that is under review, the one that is under review is unconstitutional. I think the reason that makes sense, when they were using practices for evidence of original meaning and filling in the gap of meaning, we use practice, saying if they have not done it before then they cannot do it. There are all kinds of reasons that previous generations might not have passed a regulation beyond the idea that it was on because to show. Was unconstitutional. It created the need that they may have had political are other adjustments to go in a different direction. And they anticipate some of the points in the majority of the opinion. And it might look a little bit different if we deal with a regulation that addresses a new technology and so on. Or the social problems that were not apparent in the past. I still think the idea of requiring a regulation to who has a longstanding history where history does not focus on the era of ratification is hard to ask lane. Hard to explain. Host very helpful. Thank you. To some of the different uses of history, all of you have identified and sometimes the justice would look to history to codify the Public Meeting meaning and other times they would be leading up to her ratification. Other times it is where the text is unclear. You expressed russians about using it as a straitjacket saying you expressed questions about using it as a straitjacket. Lets look at something that several of you identified. Justice thomass claim that when the text is clear, you do not have to look at history. When i understand it more, he is saying the word legislature is clear. It can only mean legislature it cannot be legislator that is constrained by a constitution. It would suggest that the framework is working by those constitutions. And in the case like Government Action cases where they said the text is clear, it clearly need means colorblindness suggesting that those thinking colorblindness might be irrelevant. Do i have that right . It raises the question how can you be so confident the context is clear that people thought civil wars about this meaning and they did not think it was clear at all . Guest youre asking specifically about the affirmative action context . Host both in affirmative action and more are. Those are two cases where Justice Thomas said the text is where, and with text is clear and with the colleagues, Justice Kavanaugh on an Justice Barrett do not find it clear at all. So when the text is so clear, it is he decide he does not have to look at history . Guest i think the fact that originalists or contextual is can lean on whether or not a text is clear is not that probative about whether the text is in fact clear. It could be we are and then on one side of the debate it is wrong in its analysis. And originalists bring to bear and contextual is bring to bear all ports of tools of interpretation and traditional tools of interpretation to verify the meaning of the word text. And it changes the interpretation about how words used in one part of the document are also used. Or it gets to the Second Amendment has an individual right to keep and bear arms. They said the Second Amendment is the first to the right of the people and the court said the majority looking at how has it been used throughout the rest of the constitution and it is always used to note individual right. Therefore, that suggests it is also an individual right as opposed to a collective right. This is one example of the kind of textual tools that can be used to clarify the meaning of the text quite apart from historical practices. Host i will quickly say if i may in response to something that was said earlier, i probably do disagree on the global practices to this extent. It seems to me that the relevant question, i disagree with her when she says that originalism is so far as to have a constitutional provision that is codifying a principal rather than a very specific rule. Like the president has a b 35 years old. That is a specific rule has to be 35 years old. That is a specific rule. What was that understanding about principal at the time that the text was ratified . Because there are many different versions of the principal that could more or less reconcile with the text of a provision. So it could be understood in many different ways and you can still try to confirm it to the words of the freedom of speech. It seems to me what matters is out of the people in 1791 understand the phrase the freedom of speech. What was the principal they thought they were putting into text . In the best way to get that get at that is to figure out what did they do in terms of their practices relating to speech. That gives you a strong indication of what the principal they had in mind when they put in place the freedom of each speech. The practices that the time of ratification of constitution at any provision strikes me as essential for understanding what the language is and the principal was. To be asked and that i agree with that. But i think we do have a disagreement. If she is just criticizing the kind of later subsequent practices that could be sometimes decades removed from the ratification or practices that strikes me with the system of the use of practice. Host thank you so much for that. What are your what is your response . Guest my response to that, i dont not think we disagree at all. I think we do think that historical practice is relevant to figuring out what the symbol is. What i was bringing out from Justice Thomass opinion it was a test wherein he said the existence of a historical practice alone is determinative of whether a Current Practice is constitutional. It cannot just be the distant vx instance the existence of a historical analog. I agree with you that is irrelevant to the meaning of the term. If im understanding correctly, i do not think there is a big disagreement as you may think. But turning back to the question of actually this is something where he took my words right out of my mouth in response to your previous question which had to do with how Justice Thomas determined whether it was clear and whether that was different from how other justices determined that if it was clear and required more inquiry. I think i comment on that would be the fact that originalists disagree does not discredit the endeavor. The endeavor is a at seeking out public meaning. That is difficult and people may disagree. We saw this in the child where fair case welfare case where there was an extended case between justice gorgeous and Justice Thomas and they came out on the other side of the in worry. But it does not mean that originalism is wrong in the self. It means that one was correct about the original public meaning of the cons the duchenne. What is nice about originalism, it gives a baseline to what adjust bns opinion the opinion and a firm who has it correct or who may be biased in some way. Picking and choosing different histories. While originalism cannot eliminate bias, it seeks to minimize bias into gives us a neutral baseline to determine who is doing this correctly or who is letting their bias show through. That is something i want to point out because people always point to disagreements and there were disagreement between their comments as well, but it is not does does not mean that originalism is not without value it means we can use that as a tool to check the Justice System invaluable way. In a valuable way. Host thank you. I just lost you so im going to jump in and say, what is your thought about this important discussion about when originalists disagree and whether the text is clear . In a case like moore is justice, saying the word legislature so obviously meaning legislature and not legislature constrained by a constitution that it does not matter that the fact of the original public meaning of legislature was Something Different. And those that ratified it did assume that it would include legislature or did he is he saying that the original public meaning, as the text would have been understood, was that the eight court could not have constrained the Legislature Even if the practice was to the contrary. I am just trying to understand methodologically when it is that Justice Thomas thinks the meaning is clear that we do not have to look to history at all area because the meaning should be obvious. I do think he means the original meaning and not just the way the text strikes us in isolation and what we would assigned to the text today should be controlling. And its always going to be a difficult question. There is something paradoxical saying that that meaning is clear and another justice that is disagreeing with you. It is a contradiction. It is possible that things could end up that way, but on a particular allies in particular lies view, if you think legislature means not just the assembly that passes laws but also the entire apparatus of the legal system that provides checks on the laws including eight courts and so on, state courts and so on, there was no reason to use the word legislature rather than date. This is a mood that contextually stand originalists on various kinds cap contract interpretation. You want to give every word a role to lay if you can play if you can. They said state edges later rather than state then they must have been something more specific than the entire lawmaking apparatus. And Something Else to touch on. The disagreements can count as a point against one of arguments for originalism which is that it provides more predictable objectives and criterion for society in these cases. But, whether it does or how much to appoint against original you have to as compared to what . And it is compared to a decision that gives free play to a lot more factories and one that might or might not be decisive. That might not be something that originalism is. Void of the kinds of [indiscernible] host thank you for that. One more question about this, i want to make sure i understand it. Joel, Justice Thomas, is he saying the word Legislature Must have only meant the word legislature or or or they would have used a different word . If that is the case, despite all the fact that the practice when the constitution was ratified, the majority points out it was to the contrary and the assumption in fact seems to be the Legislature Work by state courts and other canons of interpretation that would lead Justice Thomas in some cases to say that the word must have meant something even if the practice was to the contrary . Let me just ask you that question or help me understand how the justice and again Justice Thomas and tend to be more contextual is and say that the meaning is clear we do not have to look to history. What theories or approaches are they relying on . Guest to take your specific question and then the more generalized question. To take your specific question, the argument embraced by the was a little more complicated then the question of is the term legislature unambiguous. Because argument for the theory that Justice Thomas embraced in his dissent includes, for example, the idea that where does the state legislature give the authority to draw congressional districts . For example, not for them there state constitution, but from the federal constitution. It is the constitution that gives it that authority. Therefore it would fall over. It is the federal constitution that restricts and governs the decisions that the legislature makes in determining congressional districts. Not the state constitutions, substance. The legislature has the authority to draw congressional districts from the state constitution. That is a major part of the theory as well. As to why this assignment of our to the legislatures to draw congressional districts. And the rule with federal elections. And it cannot be constrained by subsequent revisions in state constitutions. I think there would also be disagreement by those embracing Justice Thomass view in more with your characterization of the practice as being contrary to that view. The petitioners in this case and my firm was one of bos in the case opposing that. The commissioners in more argued that most all these practices that were look forward by the other side and embraced by cheap Justice Roberts and his opinion could be understood as consistent with the independent legislature. Theory. It is a more complicated argument than just saying the term legislature is we are and nothing else matters. I think your broader question of how you know whether something is clear and then how does that prevent you from having to go to historical evidence, it is a very good methodological question. It is one that Justice Kavanaugh before he got onto the work, he gave a lecture and i think he published a piece in harvard on this as well. Arguing against methodologies that rely on how clear or how ambiguous is a text before resorting to Something Else or whatever because he says it is difficult to figure out whether something is sufficiently we are. That can lead to all sorts of line drawing problem. And so i suspect that Justice Kavanaugh if you were asking the kind of question you just asked me, he would resist the idea that originalism should come down to some inquiry and whether something is sufficiently clear before you resort to other forms of that. Host thank you very much. And important to flagged that piece by Justice Kavanaugh. Can you say more about the differences and approach among the justices . This is famously and a proud textual is. And it has the statutory interpretation and he joined the liberal saying the text of title vii was clear and included Sexual Orientation discrimination and constitutionalism differ from the original of i think most would say that he has a greater focus on the text, the literal text than other justices who take history more into account. We see the Justice Thomas generally cares a good deal about history. Justice barrett has written extensively this term to say that is true is extremely important but their Unanswered Questions what period of history matter and in general everyone is on the same general page, just the extent to which they take these different pieces of history into account and as was mentioned earlier how much they care about precedent. Scalia, for instance was called the fainthearted originalist because he recognized he would often rely on earlier cases contrary to the original public meaning. Theres a great debate with originalists about the role of precedent and whether we should adhere to decisions that are contrary to the original public meaning for good reason. The interesting thing, it only comes up when the previous opinion is wrong, we are determining whether to keep the decision or not. This conversation highlighted these debates within original is in but in general i think the primary motive of original is in his textual list, just determining how to elucidate the meaning of the term. Thank you for that. Sherif girgis, your thoughts about that question of when the textual us justices decide the text is clear or not, do they rely on canons of interpretation and how do you see the differences in approach between the more textual list justices like gore such and the more historically arranged justices like Brett Kavanaugh. One way to answer that is to think about the role of consequences. Could ask of originalists including critics who think the justices are acting in bad faith will save the originalists go by original meaning except when they dont like the policy or the outcome and in those cases they fall back on some other factor. I dont think thats generally the case but i think theres a more subtle role for consequences, Justice Alito described himself as a practical originalists, one way of understanding that. He will require a higher bar for the historical arguments about original meaning before he will adopt a ruling that would have very disruptive impact or disrupt expectations. The statutory case is instructive in this context, the question is whether title vii of the Civil Rights Act when it says you cant just come in 8 based on sex, and employment extends to this termination based on Sexual Orientation or gender identity. Neil gorsuch said if you look the terms in isolation and put them together the answer you get is yes, doesnt matter that nobody at the time or decades or after foresaw that inJustice Alito contests this claim on the public meaning of the text but also clear throughout his dissent in that case is the sense that if the outcome in this case is contrary to the expectations of everybody who voted for the lock on every american who voted for those lawmakers and everyones expectations afterward than perhaps our application of a regionalism coming in that case textualism, has come apart from the arguments for these methods in the first place, arguments about fair notice to people who are governed by the law, expectations, predictability, coordination and so on. Theres a way in which consequences might figure in when justices will regard the answer is clear or when they will adopt the apparent answer to the interpretive question and why they will rely on precedents and practices as a fallback. Thank you very much, helpful to learn that Justice Alito describes himself as a practical originalist. More to say about the differences among the original are some of the various justices, we have several comments. There appears to be no definition of a regionalism. Please provide a definition that all the panelists agree on. It is helpful to see the different approaches of the justices. Is there a sickle difference everyone agrees on . Can you provide further nuances that distinguish between justices alito, neil gorsuch, thomas, Brett Kavanaugh and barrett . That the fair concern that was raised. Is there any coherence to original is in given all the varieties weve been exploring . At a high level of generality you could come up with a definition they would agree to. Something to the effect that federal judges should interpret the constitution in accordance with the meanings the constitution had at the time it was ratified and any other methods of constitutional adjudication are subordinate to that ultimate endeavor, what did the constitution mean when it was originally ratified. That general definition then allows you to dive into these disagreements. Some of them are about the object of the interpretive enterprise, looking at original intent, original public meaning, another objective we are trying to get to, another would be how do we treat subordinate methodologies below the original public meaning, what role does story just isis play, and another set of disagreements about justifications for a regionalism. Why be an originalist . There are a lot of reasons to be an originalist. Natural law, justification for a regionalism, scholars like John Mcginnis and Michael Rappaport put together consequentialist justification for a regionalism, andy barnett has given Libertarian National rights justification, all sorts of different justifications for originals and but another dimension that they disagree. The point i am trying to underscore, youve got different ways of categorizing originalists, according to that object about interpretation, how they regard various methodologies that are part of the adjudicatory process supported to original meaning but i think they all broadly agree on the definition that in adjudicating constitutional cases federal judges should apply the meaning of the constitution as it was understood at the time of ratification. Can i ask something then . Please do. One thing that is important, regardless of minor differences, we have most justices trying to engage in some form of a regionalism, Justice Kagan said we are all textual lists now, different types. You get these interesting decisions like this term where the court is trying to determine the proper mental state requirement when it comes to true threats. The government can ban true threats but but mental requirement is required for the speaker, not to violate his First Amendment rights. Justice kagan writing in an opinion, looking at history to fill out the meaning of the First Amendment, we are going to say the government can ban true threats and she ends up saying recklessness is the appropriate standard. What is interesting is you get a concurrence by Justice Sotomayor joined by neil gorsuch saying you are doing it wrong. You are doing a regionalism wrong. Its true the true threats have been unprotected but you have to look at what mens rea was required throughout history and you didnt do that. I want to point out that all of the justices defined textualism and to some extent regionalism persuasive and are engaging in it more and more. It is not just the socalled conservative interpretive tool anymore. It is important to note Justice Kagans important remark, we are all originalist now, she said that an attribute to Justice Scalia meaning the text and history is relevant but also flagging as this discussion does the vigorous disagreement among the justices, liberal and conservative and within the conservative justices about how to look to text and history. To sum up the disagreements joel and anastasia flagged, what is the role of history and liquidation, why be an originalist . Not for long reasons are National Rights reasons, what is what are the consequences of regionalism . Do they lead to judicial deference to democratic outcomes . Do they constrain judges from applying their own policy preferences . Or do they tether justices to the constitutional text given the range of disagreements, i have to ask the obvious question. In what sense could we say a regionalism constrains at all . Serious question. We might shut some light on it by going back to the most original, the most primordial motivation for originals and as a modern movement that began with people like robert bork and the former attorney general, professor and federal judge, Supreme Court nominee, and it runs right through scalia and the ever more elaborated, detailed, finegrained distinctions being drawn by academic and judicial originalists today, which i would formalism which i think of as a view about the judicial role, at least the role of federal judges in our system applying written laws and basic impulse behind it is that to the extent possible it isnt always possible. Sometimes sources run out but to the extent possible judges job is to follow the sayso of somebody else. The congress that adopted, congress and ratified conventions that together adopted constitutional provision. If that provision has other legal source, delivers an answer for how to resolve this case it is not the judges role to second guess the judges of the other actors based on a moral or policy disagreement with their judgment. To coordinate across the nation to make sure theres enough stability and predictability that people can order their affairs, we needed to be the case that some people decide what the right policy is and others deeper to the decision and apply it in predictable ways. It is this idea sometimes described as faithful agency, judges are the faithful agents of congress or ratify years of the constitution, sometimes it is defined in terms of judicial deference or nonactivism or Something Like that but all of us are getting at this idea that to the extent possible judges will defer to the policy and value judgments of other actors and that is, number one, the original motivation for the system. Number 2, i think it is doing a lot of work motivating originalists today across the differences you identify and number 3, it is the element of original is him that is most widely shared and most justifies more comment that we are all originalist now, you will not find a judicial nominee on any level of the federal judiciary saying a confirmation hearing there are cases where i can judge that the statute, the constitutional provision says xyz if you just grant its policy judgments but i will rule the opposite because i have a subsistent disagreement. It is such a helpful account of justification for a regionalism despite the many disagreements we identified. The basic aversion to having judges secondguess the policy choices of other actors is one. This discussion has been so illuminating, revealing the evolution among different justices and scholars of the original purpose and theoretical and constitutional justification for a regionalism. I have to say when i studied a regionalism from a great liberal with. Originalist, in law school, i thought the purpose was to constrain judges and have them defer to democratic decisions and in a recent discussion at the hill where i noted lots of folks think originalist judges are not doing that, not deferring and not constrained, said that was never the purpose. It was just to tether judges to the constitutional text and that is a version of your response, a formalistic commitment to the text is what justifies originals of even if it doesnt constrain or reach deference. Discussion like this is very illuminating in showing these disagreements. I would love concluding thoughts from each of you, given the illuminating disagreements and agreements that we have identified what is your view about the best justification for originals him today. Let me start with you. My view is going to be similar to what Sherif Girgis said. The best justification for a regionalism is if judges do not adhere to the meaning of the constitutional provision is understood at the time that it was ratified, they undermined the authority of the people to govern themselves and in doing so they do harm to the common good because the common good requires that somebody be authoritative within a society. For us, in setting the higher law of the constitution to govern our government, to the extent you undermine the peoples ability to enact constitutional provisions that have real force moving forward you do great harm to that society, ultimately its justification rooted in an understanding of popular sovereignty. Thank you very much for that. And all your great contributions. Anastasia, what do you think . I have a different view of the justification which points to the fact that there are many justifications, you can read many of them, but for me i would have to disagree that they are the most persuasive reasons which i dont think democracies the guiding principle of the constitution, individual liberty is. I dont look favorably on difference which i want to engage with the constitution and to strike down laws, the whole point is to be counter majoritarian. Two quick reasons you should be an originalist. To be a document that establishes rule of law, that actually limits government actors. It cant mean whatever you want it to mean at any given moment. It has to have a fixed meaning that constrains Government Action. It bolsters rule of law and separation of powers. That is the one that would appeal to most people. What i find most persuasive is originals him locks in an initially legitimate lawmaking scheme. System of government that is inherently legitimate because it limits government power, contain strong protections for individual liberty including procedural protections like do process and separation of powers. Because it is locking in something that is initially legitimate that secures our rights. It is a legitimate form of interpretation. Thank you very much for that. Last word to Sherif Girgis. For me, there are lots of ways you could set up a system. You dont have to set up a system in which judges, the people who apply a law follow the original public meaning or anything specific like that. I think we, in fact, have set up that kind of system and the kind of choices as a matter of law whether its a broad level of creating its structure of government or retail level regulating particular conduct of particular laws should be followed unless its grossly unjust or has proven unworkable and needs to be abandoned. The common good of the community is best served by that in that in our system, specifically to our system, i think our reasons for adopting a written constitution are also reasons for applying the original understanding of it. I would include not just the original meaning but the original criteria for interpretation, to the extent that they have been lawfully changed since then, as the way to understand that. The main reason to adopt a written constitution is that we face a bunch of crucial choices, we have to make as a community and we are likely to disagree if we make them from moment to moment in some kind of freeform way. It is precisely our expectation of future disagreements that leaves us to tie our hands by a text adopted from the past. It is the dead hand, i understand the moral arguments against being bound by that but the argument for it is whatever reason we have for agreeing to abide by this text is reason for abiding for the choices and policy judgments reflected in that text so its deference not necessarily to whatever congress or the president do today, but difference to the judgments and body by the actors of the past that we agreed to go by because we dont think that if we just decided each decision from scratch today we would agree on nearly enough. Thank you so much, joel alicea, anastasia boden, Sherif Girgis for a discussion on the crucially important question of the justification for originals him. Its an honor to learn from all of you and thank you for taking an hour in the middle of your day to learn about the u. S. Constitution on a nonpartisan basis, thanktoll. Today, Robert F Kennedy junior a oers testify on censorship and free speech before the house judiciary subcommitt othe weaponization of the federal government. You can watch the hearing live starting at 9 am eastern on cspan now, our free mobile video apps or online, cspan. Org. The uptodate in the latest in publishing with booktvs podcast about books with current Nonfiction Book releases plus bestseller lists