US Trial Judges Bring Originalism Classes to Texas Law Schools

Sitting in a seminar room at a Dallas law school, a federal judge asked a roundtable of law students, “What can you do to keep the republic?”

It was the last class of the semester for the course “Originalism & the Origins of the Federal Constitution,” which focuses on what the document’s drafters intended when it was written. US District Judges Brantley Starr and Mark Pittman are among the judges who teach a version of the course at Texas law schools.

Starr and Pittman were ending the semester at Southern Methodist University’s Dedman School of Law with a discussion about the Prohibition amendments, before moving on to the role of federal judges. To close the class, Starr referenced Benjamin Franklin’s famous line after the closing of the Constitutional Convention—that the US is “a republic, if you can keep it.”

The class aims to teach on the sources of concepts included in the Constitution. It comes as judges like Starr and Pittman embrace the judicial theory of originalism, or the idea that laws should be interpreted as they were originally understood at the time of the nation’s founding.

Starr said in an interview that, as more members of the Supreme Court have said they’re originalists or textualists—using the plain meaning of the words within a statute in order to interpret the law—it’s important for future lawyers to learn how to do that.

Starr said if justices like Elena Kagan and Ketanji Brown Jackson publicly say they use originalist or textualist interpretations, “then it’s probably malpractice to not look at what seven, eight, or nine votes on the Supreme Court are looking at.”

Originalism isn’t without its critics. Some say it forces the law to stick to past principles that are no longer in line with the contemporary world. Others argue that it’s used by judges as a way to reach their preferred outcomes.

Pittman said he doesn’t agree with all of his rulings, but that returning to the Constitution is a guardrail that helps ensure he’s reaching legitimate outcomes, and not doing what he personally thinks is right.

Starr said it’s about agreeing on a “neutral set of principles.”

“We’re trying to figure out what the public thought these words meant at the time. If I were to just say, I don’t care what the public thought, I care what I think these words mean now, that’s obviously shifting a lot of power over to me that I don’t want to do,” Starr said. “So I tend to take people at their word when they’re trying to give up power.”

Starr and Pittman are Donald Trump appointees to the Northern District of Texas. Starr said that while Republican appointees are teaching the course now, he hopes judges appointed by presidents of any party will do so in the future.

Justice’s Inspiration

The class was created by US District Judge Charles Eskridge, another Trump appointee who sits in Houston. Eskridge said he came up with the idea for the course in 2008, when Justice Clarence Thomas said that he wished there had been a class on the history of the formation of the Constitution when he was in law school.

An attorney at the time, Eskridge said he decided to pull together documents to teach such a class, and did so for the first time in 2010 at the University of Houston.

He relied on “The Founders’ Constitution,” a 1987 five-volume set that features the documents and other records that show the history and background of the main themes of the Constitution.

Eskridge’s “Origins of the Federal Constitution” class isn’t necessarily about teaching students how to conduct an originalism analysis. He said the framers wrote publicly accessible arguments in pushing for the adoption of a legal framework.

“What I was interested in students being able to do is, read the historical material themselves, and see what they think about it and how they fit it together in their lives, rather than something that’s necessarily been refined by a court in a decision or by a professor in modern academic writing,” Eskridge said.

Starr and Pittman’s version of the class does address how to undergo an originalism interpretation.

Eskridge and Starr have taught the class together at the University of Texas at Austin. That teed up Starr to teach in the future, and he asked Pittman, based out of Fort Worth, to do it with him. They co-lead the class at SMU and Texas A&M School of Law.

“Our students are receiving superior instruction from two talented federal judges, and they are being trained to provide superior representation to their future clients on important constitutional issues,” Jason Nance, the dean of Dedman School of Law, said in an email. “No matter where students stand ideologically, they will benefit immensely from taking this course.”

Berkeley Law Dean Erwin Chemerinsky said in an email that the courses provide students with “a unique perspective on the legal system and a chance to interact with judges.”

He said he expects law students to learn some constitutional theory. “It is very important right now in preparing students to be lawyers,” Chemerinsky said.

The judges have also learned from the materials. Pittman said while he can use six-member juries for civil trials, he’s moved toward 12-member panels after reading the source materials on why the Constitution’s drafters thought it was important for the legal system.

“Sure enough, I’ve found that that does give a more balanced decision,” he said.