Originalism vs Living Constitution: My Lecture

In Kelo, we are seeing the Great Debate between Justice Scalia (joined by Justice Thomas) and Justice Stevens over how the Court should read the Constitution. Does public use mean use by the public? Or is the Court free to judicially amend the Constitution by interpreting public "use" as public "purpose"? 

In case you are interested, here is a short (30 minute) video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

We will discuss quite a bit of Constitutional Law as it concerns private property in the Property course, but this video is not an assignment. I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link) 

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:
 

 So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

It seems clear to Justice Gorsuch that the duty of the Court is to follow the written law (as opposed to amending the written law).

Nebraska School Choice Lawsuit

 Here is an article from the Plains-Sentinel.

And here is a money quotation:

The New Civil Liberties Alliance (NCLA) is representing two Lancaster County families in a civil rights suit against multiple state and local officials alleging the state education system abridges private and homeschool parents’ free speech.

The plaintiffs, Justin Jacobsen and Timothy & Joanna Menter, argue that they have suffered civil rights violations and financial complications as a result of choosing private and homeschool education for their previously public-schooled children.

Co-defendants include the City of Lincoln, Lincoln Public Schools, and state officials, among others.

The three charges in the lawsuit assert that Nebraska’s education system imposes an unconstitutional condition on parents and abridges their federal and state rights of free speech by mandating education while simultaneously pressuring parents to accept government viewpoints in the absence of any compelling state interest.

The plaintiffs hold that education – from teaching style to curricula to incentivized behavior – is speech. Nebraska mandates educational speech by holding parents responsible for their children’s education under threat of criminal penalty. However, Nebraska parents may only educate their children free of cost if they waive their right to free educational speech by enrolling their children in government schools.

And here is my Case Western law review article on the constitutional right to School Choice under the First Amendment:

Link