On this episode I am joined by Professor Daniel Farber to discuss originalism, its flaws, and the role "history and tradition" plays in constitutional adjudication.
Professor Farber explains why "foundationalists," including originalists, frequently get constitutional interpretation wrong. In Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, he and his co-author, Professor Suzanna Sherry, don't pull any punches: "We believe that foundationalism is doomed to failure no matter how brilliant the theorist or how important the foundational idea."
In the book, the Professors critique the constitutional theories espoused by Robert Bork, Justice Antonin Scalia, Richard Epstein, Akhil Amar, Bruce Ackerman, and Ronald Dworkin.
Professor Farber is the Sho Sato Professor of Law at the UC Berkeley School of Law. He has authored more than 20 books and more than 100 articles on topics ranging from Constitutional Law, Administrative Law, Environmental Law, and Presidential Power.
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