Nathaniel Hecht, the former Chief Justice of the Texas Supreme Court, and NYU Professor Melissa Murray clashed Tuesday over the controversial legal framework.
The Beacon’s Jason Cao gives a speech in the negative. (Credit: Emily Akbar)
Emily Akbar
Campus Reporting Editor, The Buckley Beacon
On Tuesday evening, the Yale Political Union hosted Former Chief Justice of the Supreme Court of Texas, Nathan L. Hecht, and NYU professor and “Strict Scrutiny” podcast host, Melissa Murray to debate on Originalism. Murray argued in the affirmative and Hecht in the negative of the resolution, “Reject Originalism.” Originalism is defined as a theory of interpreting legal texts, especially the Constitution, as it was understood at the time of its adoption.
A graduate from Yale College, Hecht most recently served as the Chief Justice of the Texas Supreme Court from 2013 to 2024. He is also the longest serving Member of Court in Texas history. A professor at NYU Law School, Murray partners with fellow law professors Leah Litman and Kate Shaw on her podcast to discuss Supreme Court Cases, with an emphasis on today’s “constitutional crisis.” She graduated from Yale Law School in 2002.
In her introductory remarks, Murray described originalism as the “greatest scam” by lawyers. Murray explained that 21st century problems such as digital privacy and reproductive rights cannot be simply addressed by the words of the framers. While she claimed to not be against originalism in theory, she expressed that she is against how it’s currently practiced, describing its application today as “outcome driven,” “intellectually dishonest,” and rooted in a “facile account of historiography.”
Murray criticized originalists for their historically selective practices, claiming, “They argue that originalism is consistent with democracy, letting the voices of the people decide, but they decide which voices will be heard and which will be included…. In that regard, originalism is a scam because it is, at bottom, an ideological project.”
Murray proceeded to use the recent debate over birthright citizenship as a critique on originalists’ failing to consider the historical context of laws. Specifically, she referred to the 14th Amendment, which states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
According to Murray, originalists say that the 14th Amendment citizenship clause was intended to overrule the Supreme Court’s 1857 decision in Dred Scott v. Sandford (1857), which ruled that African Americans could never be citizens.
Murray argued that while originalists argued that the 14th Amendment intended to only render African Americans members of the political community, in reality, the amendment thought about birthright citizenship in the context of the rising influxes of immigration at the time.
On Wednesday, the Supreme Court heard a case over the constitutionality of President Donald Trump’s plea to ban birthright citizenship. Initial reports indicate that the Justices were skeptical of the government’s argument. Murray commented on this case, questioning whether an originalist account will triumph over one that seriously considers historical context when dealing with the 14th Amendment.
Arguing in the negative, Hecht contended that Murray only rejected originalists, but not originalism as a concept. He said that the framers debated long to curate the words that make our laws, and are the only objective standard in our legal system.
“They have to agree on some sort of words or framing that could guide the principles that were going to govern all of us,” he said. “And they were very mistrustful of majorities, they were afraid that majorities would take over. And so they made it very hard to amend the Constitution.”
Hecht also highlighted the possibilities of corruption absent originalism, when laws are determined by the sitting judiciaries. He argued that originalism is consistent with democracy and provides a way to limit the power of judges.
“You want nine judges appointed by the current president to decide?” he asked the audience, to which they responded in disapproving hisses.
Hecht also criticized the popular alternative to originalism, which is known as living constitutionalism. This alternative theory argues that the meaning of constitutional texts evolve over time.
“These people will just make up the decision on their own, using values that are important to them,” he warned.
Jesus Salazar ’29, member of the Progressive Party, argued in the affirmative. Salazar listed certain flaws in originalists’ arguments in historical examples, thus urging for the Constitution to be treated as a “living document.” For instance, he mentioned, “the same Congress that passed the 14th Amendment also passed race-conscious programs through the Freedmen’s Bureau. But affirmative action is apparently unconstitutional.”
Some university affirmative action programs were deemed unconstitutional in Students for Fair Admissions (SFFA) v. Harvard in 2023. In a concurring opinion with the Court’s ruling, Justice Clarence Thomas employed an originalist interpretation of the 14th Amendment as key evidence.
Jason Cao ’29, member of the Federalists Party and a Staff Writer at the Buckley Beacon, argued in the negative. Cao shared the case of Kelo v New London, in which the city of New London seized a woman’s property straight into the hands of a private developer, thus undermining the Fifth Amendment that claims that private property shall not be taken for public use without just compensation. This example, per Cao, elucidates the dangers of judges interpreting “public use” beyond the Constitution’s context, thus necessitating originalism to provide clarity of the law.
In his closing remarks, Hecht emphasized that originalism was the only current objective standard that can reliably convey laws. “It offers a basis for explaining rules to the people of the country,” he closed.
“We must jettison our reliance on this faithless originalism,” Murray urged. “Maybe we replace it with a more open, textured originalism that is rooted in a real interrogation of history. But what we have now is intellectually dishonest and facile.”
The resolution passed with a vote of 39-23-6.