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Eleventh Circuit Court of Appeals judge Kevin C. Newsom spoke about his career and perspective on originalism at a Harvard Law School lecture held in Wasserstein Hall on Wednesday.
The event began with an introduction from Ethan C. Harper, president of the Harvard chapter of the Federalist Society, before launching into Newsom’s reflection on his clerking experience under former Supreme Court Justice David H. Souter.
“My co-clerks and I would joke that he really didn’t need us around,” said Newsom, a HLS graduate. “So we were just there as entertainment.”
Newsom recalled Souter encouraging the clerks to express their own opinions and talked about continuing the tradition with his own clerks.
“I don’t want my clerks to feel like they need to channel me or mimic me because my way of communicating may not be yours,” he said. “I think it’s important that clerks find their own voice.”
During his discussion on the first-year law school curriculum, he said most of what students encounter at law school is not applicable to what they see later in their careers.
“I think it’s overloaded with common law,” he said. “What you get is torts, contracts, property — all this old dusty English common law.”
When asked about previous long and controversial concurrences, Newsom referred to a series of cases on the standing of Article III of the Constitution, which outlines the basis for plaintiffs to bring a suit to federal court.
In the 2021 case Sierra v. City of Hallandale Beach, Newsom’s 56-page concurrence argued that plaintiffs need only show violation of a legal right to bring a case. Federal courts have long held that actual injury is necessary for a lawsuit, an interpretation that Newsom wrote had “jumped the tracks.”
Newsom laid out two criteria he uses when deciding to write a concurring opinion: what “needs to be said” and what “isn’t being said.”
Throughout the lecture, Newsom talked about originalism, a legal theory that states that the Constitution should be interpreted according to how the text would have been understood at the time it was written, as well as textualism, a legal theory that the text should be interpreted as it is actually written.
Newsom said he disagrees with the notion that originalism and textualism are “completely different things.”
“Originalism is really just textualism as applied to this extraordinary thing called the Constitution, but they’re fundamentally after the same thing, which is, in fact, the meaning of the words on the page,” he said.
When discussing how to approach the Constitution’s lack of a clear stance on originalism versus textualism, Newsom said he believes the Constitution is in favor of originalism because its writers created it as a written document and included Article V, the part of the Constitution that outlines the procedure for amendments.
“Our founders sought to write down the fundamental rules of the game,” he said.
Towards the end of his talk, Newsom hinted at the nuances in interpreting the Constitution from an originalist or textualist perspective.
“There are indications that, among modes of thinking about the law, originalism has a leg up on the others,” he said.
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