Visiting Professor of Law Michael McConnell, a professor at Stanford Law School and former judge on the US Court of Appeals for the Tenth Circuit, advocated for a “common sense” version of originalism, while Professor Noah Rosenblum, an expert in constitutional law, administrative law, and legal history, offered a critique of originalism centered on the practical evolution of constitutional law. Jeanne Fromer, Walter J. Derenberg Professor of Intellectual Property Law and vice dean for University partnerships, moderated the discussion.

McConnell opened the debate by framing originalism as the most logical way to approach a text drafted more than two centuries ago. He argued that the Constitution derives its authority from the specific intent of “We the People” at the moment it was ordained.

To McConnell, originalism is less about a judge’s personal ideology and more about adhering to the actual meaning of words like “equal protection” or “due process” as understood at the time of their writing. He warned that the alternative is a system where judges may effectively substitute their personal policy preferences for the law. McConnell maintained that while history may not provide a specific answer in every case, it provides essential guidance that prevents judicial overreach.

A key point of contention was the concept of “goat sense”—what Rosenblum described as a lawyer’s intuition about “what you can get away with and where the law will go.” He argued that this sensibility often does more to shape the Constitution’s meaning than original intent. McConnell, however, argued that originalism is a vital tool for overturning bad precedents, such as racial segregation: looking back to the original aspirations of the Fourteenth Amendment, he said, led to a more equitable result than following flawed and more recent rulings such as Plessy v. Ferguson’s “separate but equal” doctrine.

Michael McConnell: “Goat sense is you take things as far as you can. You push the envelope at a certain point. You need to know what the direction is, and my aspiration for constitutional law is to have it look a little bit more like what the document looks like and a little less like what the Warren and Burger Courts imagined that they wanted it to look like. So that’s my aspiration. By all means let’s use goat sense as a way of getting there, but we need to have a sense of where we’re heading, and that’s what I think originalism does.”