A Glimpse into Posner and Baude's Originalism Class via University of Chicago Magazine

Original thinking
Jason Kelly
University of Chicago Magazine
May 29, 2014

Support for judicial philosophies often comes across as a grudging expression of the “bear principle.” That is, if you and Supreme Court justice Antonin Scalia found yourselves in the woods faced with a potentially grizzly situation, you wouldn’t have to outrun the bear; you’d only have to outrun Scalia. And vice versa.

Whether advocating for the original intent of the Constitution and its amendments to prevail, or endorsing legal evolution based on case law, doctrine, and contemporary public values, proponents often resort to a “beats the alternative” argument. Scalia referred to his preferred originalism, in the title of a 1988 lecture, as “the lesser evil.” And during a session of the Law School seminar Originalism and Its Critics, a student describing the merits of the opposing common law view said, “Maybe it’s not intellectually honest, but it’s stable.”

A few minutes later, the class discussion tilted in a pro-originalism direction. One student rejected the common law approach as a “license to disregard the text and, say, work from pre- cedent, or when you don’t like what the result of precedent demands, work from your own moral misgivings.” Or, as another put it, “freewheeling constitutional dream making.”

These critiques prompted a defense. “I think it’s only fair at this point to say it doesn’t have to be perfect; it just has to be better than originalism.”

It was the seventh meeting of the weekly two-hour winter quarter course. By then positions among the 15 students—and coteachers Eric Posner, U-High’84, Kirkland and Ellis distinguished service professor of law, and William Baude, SB’04, Neubauer Family assistant professor of law—appeared well established. Baude, an originalist, and Posner, a skeptic, sparred amiably in the classroom and in writing about the topics of each session from their respective constitutional corners.

Eric Posner
William Baude