Understanding Originalism

The Spring 2021 FC Talks series presents Tina Fernandes Botts.

Tina Fernandes Botts is Assistant Professor of Philosophy at California State University, Fresno.  She has a Ph.D. in philosophy from the University of Memphis and a J.D. from Rutgers Law School.  Her areas of specialization are philosophy of law, philosophy of race, hermeneutics, and feminist philosophy.  In the philosophy of law, she writes about constitutional theory and law and society.  In the philosophy of race, Professor Botts publishes about the nature of racial identity, particularly mixed race identity.  Professor Botts has published three books, including an academic monograph, For Equals Only: Race, Equality, and the Equal Protection Clause (Lexington Books, 2018), which traces the changing concepts of race and equality in U.S. Supreme Court cases over the past 150 years.  She is also the editor of Philosophy and the Mixed Race Experience, published by Lexington Books in 2016, and is the co-author, with Rosemarie Tong, of the fifth edition of Routledge’s classic text in feminist philosophy, Feminist Thought, published in 2017.  Professor Botts is currently at work on a textbook in the philosophy of race, to be published in 2022 by Rowman & Littlefield, International:  Philosophies of Race: Classical and Contemporary Approaches. In her talk, she will argue that the legal doctrine of originalism, properly understood, necessarily includes tailoring constitutional interpretation to the needs of the interpretive moment, context, or jurisprudential need.

Controversy surrounding how to properly determine the meaning of the U.S. Constitution has existed since just after the document was completed and signed on September 17, 1787. The method of interpreting the constitution that we now know as originalism did not emerge on the scene until after the decision of Brown v. Board of Education, however, in 1954. There, the Supreme Court held that the U.S. Constitution did not support racially segregated schools. Conservatives of the day were deeply troubled by the decision in Brown. According to many of them, the Brown decision was wrongly decided because the framers of the constitution supported racial segregation. It was the founders’ “original intent,” they argued, that public school children should be separated on the basis of race. The idea that the “original intent” of the founders should determine constitutional interpretation thereafter came to be known as originalism. Originalism has taken other forms since then, including a strain that holds that it is the “original meaning” of the constitution (and not the “original intent”) that should govern. Still a third strain known as “living originalism” claims that it was the intent of the framers that the constitution should be flexible. All strains of originalism, however, are incoherent for the reason that neither original meaning nor original intent can be ascertained. Instead, whenever anyone seeks constitutional meaning, what is sought is a working interpretation of a written legal text through the utilization of the standard rules of statutory construction, in keeping with the basic principles of legal hermeneutics.

This talk will be hosted on Zoom by Lucy Schwarz. Please contact Lucy for details if you are interested in attending or if you wish to be added to our listserv.

Event Contacts
Lucy Schwarz