Morse, School Speech, and Originalism

25 Pages Posted: 6 Nov 2011

See all articles by Vikram D. Amar

Vikram D. Amar

University of California, Davis - School of Law; University of Illinois College of Law

Date Written: 2009

Abstract

Originalism is a term used modernly to describe a particular and controversial approach to constitutional interpretation in which the text of the document is understood and applied as "intelligent and informed people of the time" of enactment would have understood and applied it. Originalism's most ardent proponents on the current United States Supreme Court include Justice Antonin Scalia and, with increasing frequency and rigidity, Justice Clarence Thomas. In Morse v. Frederick, the Court's most recent foray into First and Fourteenth Amendment protection of student speech in a public school setting, these two Justices seem to part company over the relevance and utility of an originalist analysis. Justice Thomas wrote a separate concurring opinion in which he argues that a commitment to originalism compels a fundamental reexamination of whether public school students enjoy any free speech rights at all. This Essay examines the Court's various opinions in Morse, focusing in particular on the lessons about originalism - in the school speech setting and more generally - that might be gleaned from a careful look at Justice Thomas's opinion and its failure to attract support even from other originalist-minded Justices.

Suggested Citation

Amar, Vikram D., Morse, School Speech, and Originalism (2009). University of California, Davis Law Review, Vol. 42, No. 3, February 2009, Available at SSRN: https://ssrn.com/abstract=1954906

Vikram D. Amar (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

University of Illinois College of Law

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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