Speaking of the Scalia Interview… Three Originalists on the Harvard Faculty?


I don’t know how much progress I’ve made on originalism. That’s to be seen. I do think originalism is more respectable than it was. But there’s still only two justices up here who are thoroughgoing originalists. I do think things are better than they were. For example, I truly thought I’d never see an originalist on the faculty of Harvard Law School. You know, everybody copies Harvard—that’s the big ship. There are now three originalists on the faculty, and I think I heard that they’ve just hired, or are considering hiring, a fourth. I mean, that’s amazing to me. Elena Kagan did that, and the reason she did it is that you want to have on your faculty representatives of all responsible points of view. What it means is that at least originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn’t twenty years ago, it was not even worth talking about in serious academic circles.

I think Scalia is referring to Jack Goldsmith, John Manning, and Adrian Vermeule, all of whom are right-of-center politically, and none of whom, to my knowledge, is known as an originalist. I checked with a colleague who follows the originalism literature far more closely than I do, and he also didn’t think that any of the three are identified as originalists.

Nor, in fact, does the hiring of these three professors even say much about the progress of conservatism at in the legal academy in general (as opposed to Harvard specifically). As I wrote back in 2010:

[“D]uring Kagan’s deanship Harvard hired several conservative scholars, but it’s not exactly like she engaged in strenuous efforts to find provocative conservatives and libertarians whom the academy was overlooking. Instead, she hired Adrian Vermuele from Chicago, Jack Goldsmith from Chicago, and John Manning from Columbia, all wonderful scholars, but not exactly plucked from obscurity, or even plucked from schools outside the top 5.”

(Nor, I can now add, did the loss of these individuals to Harvard seem to spur Chicago and Columbia, or any other tops schools to feel an urgent need to add to their coterie of conservative public law scholars, so maybe the “big ship” isn’t quite as influential as Scalia thinks).)

Powered by WordPress. Designed by Woo Themes