Originalism and My First Christopher Wren Association Course
Originalism has been a buzzword among conservatives since the early 1990s. This means that a substantial portion of today’s judiciary – including perhaps a majority of the justices on the United States Supreme court – believe that the best guide to understanding the Constitution involves discovering the original intent of the men who wrote the Constitution 230 years ago. Originalists want to take the words in the Constitution and its amendments and apply them without interpretation to modern situations. I’m not going to talk about the flaws in this philosophy, but I do what to talk about how different the American judicial process was before originalism took root.
I started taking Osher courses soon after I retired from teaching in August of 2012. I spent the next year or so taking care of my mother’s estate (she died in October of 2012) and figuring out how to be retired. I began tutoring at Literacy for Life and I spent the summer of 2013 being a tour guide for Colonial Connections (a private tour company in Williamsburg). I began to take some Christopher Wren courses (it wasn’t the Osher program yet) and began to set some goals for my retirement years.
By the fall of 2014, I decided to take the plunge and teach a course for Christopher Wren in the spring of 2015. I had a lot of material I had used when I was teaching high school, so I thought I could pull a class together reasonably well. Looking back on my decision to teach this class, I am a little stunned at the big bite of the apple that I took. I proposed a 6-week course on important Supreme Court cases in the post-World War II era. That was big. It’s the only 6-week class I’ve ever taught for the Christopher Wren/Osher program. It was pretty ambitious.
Day One: The focus of this class was on the structure of the judicial system of the United States – Federal vs. State courts, the powers and jurisdiction of the Supreme Court, the basis of judicial review, and the justices who served on the Supreme Court during the years I was investigating – the Warren Court (1853-1969), the Burger Court (1969-1986), and the Rehnquist court (1986-2005).
During this period, the court generally operated to expand Civil Liberties through an expansive interpretation of the Bill of Rights. The court took seriously two parts of the Constitution that are not as publicly discussed as some other sections of the document: the “necessary and proper” clause (Article I, Section 8, last clause), which says that the areas in which the Congress can make laws is flexible, and the 9th Amendment, which says that the rights listed in the previous eight Amendments in the Bill of Rights are not a total listing of the rights Americans have. The resulting “activist” Supreme Court fundamentally changed the relationship between the American people and their government. With the emergence of “originalism,” this expanded interpretation is being curtailed and rolled back. In 2015, when I taught this class, the influence of originalist thinking was only beginning to emerge into the public consciousness. Today, almost eight years later, the originalist majority on the Supreme Court is wording assiduously to undo the work done by the court over the past 75 years or so.
Days 2-3: The focus of these classes was on key First Amendment cases. I set the stage by going back a few decades to pick up a couple of important cases: Schenck v. United States (1917), in which Justice Oliver Wendell Holmes found that it was okay to limit free speech during wartime, and West Virginia v. Barnette, in which the court invalidated a West Virginia law that required public school students to recite the Pledge of Allegiance.
I went on through the litany of well-known cases that examined issues of school prayer, freedom of school children to protest the Vietnam War, public school system support of religious private schools, Nazi protests in Skokie, Illinois (the court held that they had the right to march), obscenity, moment of silence in place of prayer, flag-burning, and animal sacrifice. These cases took us through 1993, and in virtually every case the opinion of the court favored the individual whose beliefs or values went against a popular majority.
Day 4-5: These sessions focused on the Rights of the Accused – the protections guaranteed by the 4th, 5th, 6th, and 8th Amendments to the Constitution and most important to people who have come into contact with the judicial system. The application of these rights in criminal cases is complicated by an interpretive doctrine that has emerged in the 20th century – the Doctrine of Incorporation, which uses the 14th Amendment to make the protections of the Bill of Rights applicable to state law as well. Here’s what this means. The Bill of Rights begins by saying that “Congress shall make no law . . .” and then goes on to enumerate the things that Congress cannot do in violation of an individual’s rights. However, there was nothing that said that states could do these things. For example, Congress could not establish a religion, but states could. And so forth. The Doctrine of Incorporation said, essentially, that the guarantees that the states could not violate due process and equal protection of the laws as laid out in the 14th Amendment means that the Bill of Rights also applied to state law as well. A little bit of Supreme Court hocus-pocus, but it made sense so the Court went with it.
Again, I went through the litany of well-known cases that protected individuals against warrantless searches, guaranteed the right to an attorney, protections against self-incrimination, the need for warrants for wiretaps, death penalty, drug testing, and thermal imaging. These cases, which took us up to 2001, reflected the changing technology of law enforcement and the need for a finely-tuned interpretation of these rights that would protect public safety without infringing on personal freedoms.
Day 6: This day focused on Civil Rights cases – cases dealing with discrimination based on race and sex, as well as affirmative action. These cases were based on the equal protection clause of the 14th Amendment and had the effect of extending constitutional protections to groups that had not been dealt with fairly in the earlier years of the country.
Here’s a list of the cases I discussed in this class in case you want to give the Google Machine a workout:
First Amendment
Schenck v. U.S. (1917)
West Virginia v. Barnett (1942
Engel v. Vitale (1962)
Tinker v. Des Moines (1969)
Lemon v. Kurtzman (1971)
American Nazi Party v. Village of Skokie (1971)
Wisconsin v. Yoder (1972)
Miller v. California (1973)
Wallace v. Jaffree (1986)
Texas v. Johnson (1989)
Church of Lukumi Babalu Aye v. City of Hialeah (1993) (tbh my favorite case name of all time)
Fourth Amendment
Mapp v. Ohio (1961)
Terry v. Ohio (1963)
Katz v. United States (1967)
New Jersey v. T.L.O (1985)
Skinner v. Railway Labor Executives’ Association (1990)
Kyllo v. United States (2001)
Fifth Sixth Amendment
Miranda v. Arizona (1966)
Sixth Amendment
Gideon v. Wainwright (1963)
Eighth Amendment
Furman v. Georgia(1972)
Gregg v. Georgia (1976)
Fourteenth Amendment
Brown v. Board of Education of Topeka, Kansas (1954)
Swann v. Charlotte-Mecklenburg Board of Education (1971)
Reed v. Reed (1971)
Regents of the University of California v. Bakke (1978)
It is interesting to look back at this course today, just eight years after I first taught it. I didn’t focus on the Roberts Court during this class, as my intent was to look at the Supreme Court historically, focusing on a time when the Court was expanding rights across the board. The majority on the Supreme Court today clearly see these decisions and other decisions of the Warren, Burger, and Rehnquist Court as errors that they are focused on reversing.
This is VERY informative…thanks!