Eric Posner on his Originalism Course, and Heller
Michael Ramsey
Eric Posner has this post on the first meeting of his course (co-taught with Will Baude) on originalism. Two points of interest:
(1) They asked the students to rate, on a scale of 1-5, 5 being the most originalist, how originalist they were. If I'm reading his graph right, of 14 students, ten rated themselves neutral (a three) or better, and six gave themselves a 4 or 5. Even considering the type of student to whom this course is likely to appeal, that seems like a high percentage. But Professor Posner adds (with an evil laugh?), "Let’s see whether students change their mind by the end of the course."
(2) Posner goes on to discuss DC v. Heller, the case they read for this week's meeting. He says [paragraph break added]:
It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the Court does not resolve the ambiguity one way or the other. A general preference for allowing voters to make up their own mind, the absence of any allegation or evidence of political failure, a relevant precedent if not a strong one, and a very long history of gun control legislation across the country all point to upholding the statute.
Both Scalia’s and Stevens’ opinions are horrible messes. Scalia’s parsing of the text is wooden and ludicrous. Both of them select the evidence they like and interpret it tendentiously. Neither show any feeling for history. The opinions are tedious, pompous anti-models of judicial writing, no advertisement for the method of originalism.
Apparently he does not plan to play a neutral role to give students space to develop their own views.
I think it's worth noting that the second paragraph is mostly loaded adjectives -- "wooden", "ludicrous" -- typical of academic bullies who think they can defeat an argument by declaring it stupid. Originalists are used to it. Students who want to be originalists need to get used to it.
UPDATE: Will Baude comments substantively on Heller: Heller as an Advertisement for Originalist Methodology. The great advantage of this course, it seems, is that the students get to hear competing views, even if Professor Posner (in the blog, anyway) is a bit heavy handed.