In a panel on Originalism and Equal Protection of the Law, Professor Amar made some pretty pointed criticisms of Professors Barnett, Epstein, and Judge Bork. Check out the liveblog here, but here are some of my choice quotes. I recorded it, and will Joshcast it later.
He is also awesome
Amar already discussed the meaning of the reconstruction amendments in his many books and articles.
Will focus on originalism, and different ways to be serious about originalism.
1. Moral Seriousness. to what extent do we have to worry that meaning we give to law achieves just or unjust results. Some people dont want to ask that question. OThers want to rub your nose in that. I applaud them.
Original constitution was pro-slavery
Amar has some problems with Barnett’s book. It is dedicated to Madison, who was a slavocrat, and Lysander Spooner, who was opposed to slavery. Oh Snap!
2. Methodological seriousness. A lot more complicated when you get down into the weeds.
Barnett has an idiosyncratic methodology, but he is trying to be methodologically serious.
Wow, Akhil’s beating up on Randy tonight
3. Historical Seriousness. Robert Bork, our teacher, did not teach it correctly becuase he did not now the history.
Amar doe snot love Barnett’s book on history. You have to know that Bingham came from Ohio, not New York. You can’t mispell Lyman Trumbull
Richard Epstein has a great theory of everything, he does not deserve respect as historically originalist
most judges can’t do this.
I am recording this, and will podcast it shortly
The next generation of scholars need to do this better.
I am shocked Amar is going down this road
He has copies of Barnett’s book and Calabresi’s book on the podium
4. Legal seriousness. I am skeptical of people who claim to be originalist when the intent always turns out to be liberal, or conservative when they are conservative
I think that in Criminal procedure provisions, Constitution has nothing to do with exclusionary rule.
I am skeptical when it always turns out to be in the Libertarian Project, or the Property Project
5. Hollistic seriousness. 9th amendment and you know what I mean. Only when you study a bunch of clauses do you know the right amount of evidence to act for.
I am still stunned how brazenly Amar went after Barnett
It is a Constitution we are propounding, not a Clause. Some originalists have too narrow an understanding
Intergenerational seriousness. The 14th amendment amazing example.