One of the most learned scholars of originalism recently visited us here at the University of Texas at Austin. Regarded by many as the best expositor of modern originalism, Larry Solum has spent decades theorizing, explaining, and defending originalism as the mode of interpretation that should be applied to the U.S. Constitution. For Solum, originalism entails three basic commitments: (1) the original meaning of the Constitution is its public meaning; (2) the original meaning of the Constitution was established at the time the text was framed and ratified; and (3) constitutional interpretation and enforcement should be constrained by the original meaning of the Constitution.

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Originalism is now the dominant method of constitutional interpretation in the United States. Even scholars and judges who prefer a different technique of constitutional interpretation concede this fact of American constitutional life. Supreme Court Justice Elena Kagan famously declared “we are all originalists” and Berkeley Law Dean Erwin Chemerinsky agrees that “originalism is ascendant and will be for years to come.” 

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On his visit to our campus, Solum presented his new paper – a must-read for anyone interested in constitutional interpretation. In “Outcome Reasons and Process Reasons in Normative Constitutional Theory” (coming soon in the University of Pennsylvania Law Review), Solum holds a mirror to scholars of constitutional law and asks whether we have prioritized outcomes over process in constitutional interpretation. To ask the question is to answer it: the vast majority of scholars of the U.S. Constitution are guilty of what Solum describes as “outcome reductionism,” an approach that Solum declares “should be rejected.” I agree with Solum that we should elevate process over outcomes, though that road does not necessarily lead me to originalism as the best method of interpretation. As I discussed with Solum over dinner, it is possible to accept the thesis of his new paper while not embracing an originalist reading of the Constitution. This of course leaves open the most important question of all: what is the best technique of constitutional interpretation? I will have more to say about this in a future edition of The Leaflet.

Registration is now open for the 3rd Graduate Conference on Constitutional Change at the University of Texas at Austin, to be held on December 9-11, 2024. Graduate students of all levels are welcome. More details here. Applicants will be notified on a rolling basis.

Coming soon: AI and the Rule of Law diagnoses the challenges posed by artificial intelligence and offers suggestions for regulating its use in a manner consistent with the rule of law. This is a book for our times.

Is it possible to amend the U.S. Constitution today? I have argued no, at least not through the congressional path to reform. But what about in a constitutional convention? We will answer this question in May, when students across the country gather for the first nationwide student-led model Constitutional Convention. Students are invited to apply to join this historic exercise in negotiation, deliberation, and consensus-building. All expenses will be paid for accepted students. The application is available here.

Thank you to our Distinguished Research Scholars in the Constitutional Studies Program here at the University of Texas at Austin. They come from all around the world: Australia, Bangladesh, Barbados, Cameroon, Canada, Colombia, Ecuador, France, Indonesia, Ireland, Lithuania, Mexico, Romania, Singapore, South Korea, Turkey, and the United States. Each has enriched our community with new ideas in constitutional thought and practice.

These two books should be read together. They offer sometimes competing and at other times complementary accounts of the methods and objectives in interpreting law, both ordinary and constitutional. 

This new book on Gender, Sexuality and Constitutionalism in Asia expands our field of vision beyond countries that commonly feature in comparative constitutional law. With chapters on Hong Kong, India, Indonesia, Japan, Malaysia, Nepal, Pakistan, Philippines, Singapore, South Korea, Sri Lanka and Taiwan, this collection highlights the richness of constitutionalism in many understudied countries across Asia. 

Last week, Akhil Amar debated Michael Mukasey at Harvard Law School on whether the Fourteenth Amendment disqualifies President Donald Trump from holding elected office. Jeannie Suk Gersen moderated the discussion. The debaters disagreed sharply but respectfully. 

For a brief and effective introduction to the art and science of comparative law, I recommend this brand new book by Sabrina Ragone and Guido Smorto: Comparative Law: A Very Short Introduction. It will be published later this month but may be ordered right now.

The Constitutional Studies Program hosted a book launch for The Constitution of Arbitration, authored by Victor Ferreres, a member of the visiting faculty here at the University of Texas at Austin. Alejandro Linares, a former Justice of the Constitutional Court of Colombia (2015-23), joined us as the featured discussant. This event was sponsored by the Latin America Initiative, directed by my colleague Ariel Dulitzky.