Feb. 25, 2019 - Ryan Williams, an assistant professor at Boston College Law School, questioned if a strict interpretive Constitutional theory should be adapted in his presentation "Should Lower Court Judges Be Originalists?" in the Hendricks Heritage Room last week.
"Even if one subscribes to originalism as a proper theory of constitutional interpretation in general, there might be very significant questions about whether originalism is an appropriate theory of interpretation for lower court judges specifically," Williams said.
Williams said that a common sense of these issues is that the Constitutional interpretation as practiced by lower courts often goes overlooked because lower courts are somewhat invisible actors in the Constitutional system. Lower courts are bound by Supreme Court precedent and therefore must adhere to whatever law the Supreme Court has established, leaving no room for originalism to operate in a meaningful fashion.
"I think there's something to that critique," he said. "But I don't think that quite answers the question fully, because there are significant domains in which lower courts can and do use originalism in particular settings.
"Lower courts frequently look to originalism or originalist sources for guidance as to the interpretation unexamined Constitutional issues as a matter of first impression."
Williams said an area where considerations of originalist sources by lower courts can be significantly important is where the Supreme Court has adopted an originalist-oriented framework.
"The Seventh Amendment right to the preservation of a common law jury trial in civil suits is probably the most salient example of a situation where the Supreme Court itself has specified history as a controlling determinant of what the relevant Constitutional language actually means."
Williams also examined other areas where a choice between originalism and other interpretive methodologies might be significant to lower court decision-making and discussed some of the costs and tradeoffs involved in asking judges of the lower courts to engage in originalist interpretation.
Williams was the fourth of 10 speakers in the Spring 2019 Distinguished Speaker Series. The series will continue at noon every Monday in the Hendricks Heritage Room until April 8, except for March 11 during spring break. The next speaker is Zack Clopton of Cornell Law School.