In recent years, the doctrine of originalism, significantly championed by Justice Antonin Scalia, has seen a marked increase in influence within the U.S. judiciary. This influence is evident not only in the Supreme Court and federal judiciary but also within state judiciaries, as noted by an analysis. However, while there is abundant scholarship on the federal Constitution’s original understanding, there remains a significant gap concerning state constitutions. As state judges are often tasked with interpreting these documents, the absence of detailed historical scholarship presents them with challenges.
One proposed solution to bridge this scholarly gap is the establishment of centers dedicated to the study of state constitutions. Such centers could serve a role analogous to the civics institutes increasingly found in state universities. These institutes, which offer courses in American history and Western philosophy, aim to counter current perceptions about the limitations of humanities departments, as discussed in initiatives like the heterodox civics centers movement.
Existing civics institutes often collaborate with faculty from law schools, offering guidance on hiring for viewpoint diversity, as seen in initiatives at institutions like Ohio State. If this model expands to law schools, these originalism centers could focus on historical research and curriculum development to better support state judges and legal scholars in understanding state constitutions.
Such centers could compile primary sources into accessible databases, similar to projects like the Quill Project, facilitating easier access for scholars and judges alike. Furthermore, they could publish applied research, helping to elucidate state-specific constitutional provisions. In doing so, they would serve the dual purpose of enhancing legal education and diversifying legal scholarship, thus aiding in judicial interpretation.
There remains a consideration of the location and management of these proposed centers, with potential homes in either new civics institutes or law schools. The decision would hinge on various factors, including the open-mindedness of law school faculties towards originalist thought. This challenge highlights the scarcity of originalist scholars within academia—a deficiency noted in discussions on expanding viewpoint diversity in academia, as seen in dialogues surrounding the diversification of the academy.
While red-state legislatures have shown interest in civics education initiatives, the appeal of state originalism centers could transcend partisan lines, providing valuable support to courts in blue states that also engage in originalist interpretation. This bipartisan potential aligns with broader judicial and civic educational goals, potentially enhancing the legal landscape and aligning with Scalia’s broader vision. For a more in-depth discussion on this topic, visit SCOTUSblog.