A.J. Bellia, O’Toole Professor of Constitutional Law, joined Supreme Court Justice Antonin Scalia on a panel at the annual meeting of the American Association of Law Schools (“AALS”). The panel discussed the role of history in Federal Courts jurisprudence.
The panel considered the extent to which courts should rely on history in deciding questions of federal judicial power. Today, much of how scholars and judges approach the jurisprudence of federal courts is heavily influenced by an originalist point-of-view. This places great weight on Founding-era understandings of the role of the courts in the constitutional framework (Article III), as well as the first statutory regulation of the federal courts, the 1789 Judiciary Act.
Recent scholarship has questioned whether an originalist and textualist style of reasoning should have such heavy influence in the field. It is noted that in many other areas of constitutional law, prevailing doctrines diverge considerably from widely held expectations from the Founding and even Reconstruction periods. They accommodate modern day developments and functional considerations that the Founding generation(s) could not have anticipated.
Justice Scalia defended originalism as providing a clear legal road map to many of the issues the modern court faces. “Originalism is not perfect, but it doesn’t have to be,” Justice Scalia said. “It will not always give you an answer. I just have to prove that it’s better than anything else.”
The panel included:
The Hon. Antonin Scalia
Supreme Court of the United States
Anthony J. Bellia Jr.
O’Toole Professor of Constitutional Law
Notre Dame Law School
Bradford R. Clark
William Cranch Research Professor of Law
George Washington University Law School
Richard H. Fallon, Jr.
Ralph S. Tyler, Jr. Professor of Constitutional Law
Harvard Law School
Tara Leigh Grove
William & Mary Law School
Professor of Law
UC Berkeley School of Law
The papers from the panel will be published in a spring issue of the Notre Dame Law Review.