Students of Originalism Meet Justices at Georgetown Law Summer Seminar

July 27, 2017

As a first-year evening student taking Constitutional Law with Professor Randy Barnett, Noah McCullough (L’20) got a tantalizing glimpse of the doctrine of originalism and wanted to dive deeper. So he applied to Barnett’s unique Originalism Summer Seminar, a weeklong intensive session held May 22 to 26 at Georgetown Law.

“With the Justice Gorsuch nomination and the confirmation process…I kept hearing conflicting versions of what originalism actually was,” McCullough explained. “When I saw the lineup they had — the speakers, the academics, the judges, every person who was going to talk to us — I felt like it would be a valuable experience.”

Originalism is the view held by the late Justice Antonin Scalia, current Justice Neil Gorsuch and others that “the meaning of the text of the Constitution must remain the same as when it was enacted, until it is properly changed by constitutional amendment,” says Barnett, who directs Georgetown Law’s Center for the Constitution. And from Day One of the seminar, there was much to talk about, from an overview of originalist theory by Professor Larry Solum to rationales and critiques by Barnett and other leading scholars.

The best part? “It’s hard to top meeting with Supreme Court justices,” McCullough said. By Friday morning, participants — 37 students representing 18 law schools including Georgetown, George Washington, Harvard, Yale, Columbia, Michigan, Duke, University of California Berkeley, University of Arizona and UVA — had twice visited the Court to meet with Justices Samuel Alito, Neil Gorsuch and Clarence Thomas. All three lent their time and their thoughts for the benefit of the students.

Thomas, McCullough reported, held court on many topics in addition to originalism; Alito described how originalism has played a role in the cases heard by the Court this term.

What did the newest justice tell the group? “He [was glad] that there is a program like this where people are able to learn about originalism, its theory and its applications,” McCullough said of Gorsuch. “He also gave us the charge, if you will, to do academic work and get involved in trying to figure out original meanings… As new technologies are being developed, it’s hard to tell what kind of judicial doctrines and constructions will give the Constitution’s original meaning effect in an ever-changing world.”

Strategic Decisionmaking

Annika Boone, who just finished her 1L year at Harvard Law, applied to the program after hearing Barnett give a talk to the Federalist Society. She especially enjoyed a talk by Adjunct Professor Alan Gura (L’95), who successfully argued the Second Amendment cases of District of Columbia v. Heller and McDonald v. Chicago in the Supreme Court.

“I’m really interested in strategic litigation…so I was furiously scribbling notes the whole time he was talking about Heller and how you go about strategic litigation from an originalist perspective,” Boone said of Gura.

Jordan Pratt, who has already worked for the Florida Attorney General’s office for several years, participated in the seminar out of personal interest — having written two law review articles dealing with, he says, “interesting Second Amendment questions that the Supreme Court decisions of Heller and McDonald kind of leave completely open.”

Would participants recommend the Originalism Summer Seminar? “Absolutely,” said Desirae Tongco, a Howard Law graduate who starts at O’Melveny & Myers in the fall. “What I particularly appreciated…was that it was so cutting edge in the material… Originalism is so misunderstood; this [program] was very helpful in shedding the light [on a] theory that is very important in constitutional interpretation.”

All-Star Lineup

During the week, participants were treated to talks by former Attorney General Ed Meese, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit, Justice Thomas Lee of the Utah Supreme Court and Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, among others.

“She has a passion for educating the public and law students in particular so I thought it was a great treat,” said Pratt of Sykes. “Especially someone who has contributed to Second Amendment doctrine in practice, post-Heller and McDonald.”

And for those not already working as a lawyer, the Originalism Summer Seminar was a great place to get career advice. McCullough, the Georgetown Law evening student who works in the Senate Majority Whip office for John Cornyn (R-TX) during the day, did not pass up the opportunity to ask Gorsuch. “His advice, along with that of almost every speaker we asked, was to take risks — don’t have any set plans,” McCullough said. “The greatest opportunities are sometimes the ones that you’re not expecting.”