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Originalism and the Academy in Exile

Published online by Cambridge University Press:  20 June 2019

Abstract

Although constitutional originalism has attracted a remarkable degree of public and professional attention over the past several decades, little research has been conducted on the intellectual roots of modern originalism. This Article finds that American law schools housed few originalist theorists through much of the 1970s and early 1980s. However, after Edwin Meese III became U.S. Attorney General in 1985, the Department of Justice constructed a vibrant academy in exile, with government lawyers leading the way in the early development, theorization, and exercise of originalism. In addition to becoming the official mode of constitutional interpretation for Meese and the DOJ, originalism started to gain followers on the federal bench and within conservative social movements during the second half of the 1980s. As constitutional originalism grew in influence and professional use, academic interlocutors began engaging with and reimagining originalism more intently.

Type
Original Article
Copyright
Copyright © the American Society for Legal History, Inc. 2019 

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Footnotes

This year, he also is a doctoral fellow through the American Bar Foundation/AccessLex Doctoral Fellowship Program in Legal and Higher Education. He thanks Paul Frymer, Keith Whittington, Hendrik Hartog, the participants of “The Roles of Lawyers in Constitutional Change” conference hosted by the Center for Empirical Research on the Legal Profession at the University of California, Irvine School of Law, and the editors of Law and History Review for their advice and guidance.

References

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2. Conversation with Gary Lawson, November 1, 2018.

3. When asked about the transition from life as a law student in the 1970s to starting a career as a law professor in the early 1980s, Richard Michael Fischl exclaimed, “Quite a contrast! In between being a student and a professor, I was a lawyer for the National Labor Relations Board for five years. So I had a sort of hiatus from the legal academy. When I came back, it was like, ‘What happened?’” Richard Michael Fischl, Interview, October 6, 2017.

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15. See note 1.

16. Compare with Keck, Thomas M., The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago and London, University of Chicago Press, 2004)CrossRefGoogle Scholar. Keck contends that originalism held a stronger position in the law schools during this period. Ibid., 151–56.

17. Robert Bork, “The Struggle Over the Role of the Court,” National Review, September 17, 1982, 1138.

18. Ibid., 1137.

Ibid

19. Conversation with Lawson.

20. See Carter, Stephen L., “Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle,” Yale Law Journal 94 (1985): 821–72CrossRefGoogle Scholar. However, even in this article, Carter is careful to outline the limited applicability of an originalist approach to constitutional interpretation: “Originalism has weaknesses, and with respect to adjudication under less determinate clauses concerned with individual rights, these weaknesses may be fatal.” Ibid., 861.

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25. John C. Harrison to Paul Baumgardner, E-mail, November 2, 2018 and December 12, 2018.

26. Conversation with Lawson.

27. Conversation with Steven Calabresi, October 2, 2018.

28. Conversation with John O. McGinnis, November 13, 2018.

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30. Michael Rappaport to Paul Baumgardner, E-mail, October 3, 2018.

31. Simon, “The Authority of the Constitution and its Meaning.”

32. Edwin Meese, “Remarks of The Honorable Edwin Meese III, Attorney General of the United States, at The University of Richmond, Richmond, Virginia,” in “Speeches of Attorney General Edwin Meese III,” United States Department of Justice, updated October 24, 2014, https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/09-17-1986.pdf (accessed November 15, 2018); Meese, Edwin III, “A Return to the Founders,” National Law Journal June 28, 2004, 22Google Scholar; Kalman, Laura, The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1996), 133Google Scholar; and Berger, Raoul, “Academe vs. the Founding Fathers,” National Review, April 14, 1978, 468–71Google Scholar.

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34. Reynolds, William Bradford, “Renewing the American Constitutional Heritage,” Harvard Journal of Law and Public Policy 8 (1984): 225Google Scholar.

35. Ibid.

Ibid

36. Ibid., 228.

Ibid

37. Edwin Meese, “American Bar Association,” in “Speeches of Attorney General Edwin Meese III.”

38. Ibid.

Ibid

39. Terry Eastland, “The Power of Giving the Right Speech at the Right Time,” The Weekly Standard, December 7, 2018, https://www.weeklystandard.com/terry-eastland/edwin-meeses-speech-that-saved-originalism (accessed December 8, 2018).

40. Ibid. Also see Edwin Meese III, “Remarks on the Originalism Revolution,” in “The Originalism Revolution Turns 30: Evaluating Its Impact and Future Influence on the Law,” Heritage Foundation, Special Report No. 191, ed. Elizabeth H. Slattery, January 26, 2017, 5–7.

Ibid

41. Conversation with Lawson.

42. Ibid; Harrison, E-mail; Edwin Meese III, “The Economic Liberties Conference,” in “Speeches of Attorney General Edwin Meese III.”

Ibid

43. Harrison, E-mail.

44. Conversation with Lawson.

45. See, for example, Religious Liberty under the Free Exercise Clause, United States Department of Justice, Office of Legal Policy, August 13, 1986; Wrong Turns on the Road to Judicial Activism: The Ninth Amendment and the Privileges or Immunities Clause, United States Department of Justice, Office of Legal Policy, September 25, 1987; The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation, United States Department of Justice, Office of Legal Policy, October 11, 1988; Johnsen, Dawn E., “Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change,” Indiana Law Journal 78 (2003): 363412Google Scholar.

46. Conversation with McGinnis.

47. Original Meaning Jurisprudence: A Sourcebook, United States Department of Justice, Office of Legal Policy, March 12, 1987.

48. Guidelines on Constitutional Litigation, United States Department of Justice, Office of Legal Policy, February 19, 1988.

49. Ibid., 1.

Ibid

50. Ibid., 3.

Ibid

51. Ibid., 3, 10.

Ibid

52. Ibid.

Ibid

53. Conversation with McGinnis.

54. Editorial, “The Irrepressible Mr. Meese,” Wall Street Journal, October 29, 1986, 28.

55. Brennan, William J. Jr., “Construing the Constitution,” UC Davis Law Review 19 (1985): 5Google Scholar.

56. Ibid., 4–5; and Stevens, John Paul, “Construing the Constitution,” UC Davis Law Review 19 (1985): 1921Google Scholar.

Ibid

57. Bernard Weinraub, “Reagan Says He'll Use Vacancies to Discourage Judicial Activism,” New York Times, October 22, 1985, A1.

58. Carter, Stephen L., “The Independent Counsel Mess,” Harvard Law Review 102 (1988): 118Google Scholar. Carter notes how “the Justices of the Supreme Court seem blissfully unaware of, or perhaps merely unimpressed by, the stinging and often cogent criticisms of originalism in its various guises. True, the critics dismiss what the Justices are doing as reactionary, pointless, or simply crazy, but there may be method to the Court's apparent madness. It is worth taking a moment to consider whether there might be a sensible theoretical reason for the Justices to cling to their much-maligned vision of the way constitutional interpretation ought to take place.”

59. Ronald Dworkin, “From Bork to Kennedy,” New York Review of Books, December 17, 1987, 36–42.

60. Macedo, Stephen, The New Right v. The Constitution (Washington, DC: Cato Institute, 1987)Google Scholar.

61. Dworkin, “From Bork to Kennedy.”

62. Ibid.

Ibid

63. Maltz, Earl, “Foreword: The Appeal of Originalism,” Utah Law Review 1987 (1987): 773805Google Scholar. In fact, the Heritage Foundation's special report celebrating the thirtieth anniversary of the “originalism revolution” was released in 2017. Slattery, “The Originalism Revolution Turns 30.”

64. See Thomas, Clarence, “Toward a ‘Plain Reading’ of the Constitution—The Declaration of Independence in Constitutional Interpretation,” Howard Law Journal 30 (1987): 983–95Google Scholar.

65. Post, Robert and Siegel, Reva, “Originalism as a Political Practice: The Right's Living Constitution,” Fordham Law Review 75 (2006): 545–74Google Scholar; and Southworth, Ann, Lawyers of the Right: Professionalizing the Conservative Coalition (Chicago and London: University of Chicago Press, 2008), 107–8CrossRefGoogle Scholar.

66. Kersch, “Ecumenicalism Through Constitutionalism,” 116.

67. Ziegler, “Originalism Talk.”

68. Edwin Meese III, “American Enterprise Institute,” in “Speeches of Attorney General Edwin Meese III”; Edwin Meese III, “Address of the Honorable Edwin Meese III, Attorney General of the United States, before The Christian Legal Society Breakfast,” in “Speeches of Attorney General Edwin Meese III”; Edwin Meese III, “The Economic Liberties Conference,” in “Speeches of Attorney General Edwin Meese III”; Edwin Meese III, “The Heritage Foundation,” in “Speeches of Attorney General Edwin Meese III”; Edwin Meese III, “St. Louis School of Law,” in “Speeches of Attorney General Edwin Meese III”; Edwin Meese III, “The Conservative Political Action Committee Conference,” in “Speeches of Attorney General Edwin Meese III”; Galebach, Stephen H., “The Declaration of Independence and Original Intent,” Journal of Christian Jurisprudence 6 (1987): 107–19Google Scholar; and Slattery, “The Originalism Revolution Turns 30,” 6.

69. Teles, “Transformative Bureaucracy.”

70. Also see Teles, Steven M., The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008): 141–45CrossRefGoogle Scholar; and Hollis-Brusky, Amanda, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford and New York: Oxford University Press, 2015)Google Scholar. William H. Pryor, Jr., “Remembering Edwin Meese's Tulane Speech,” in Slattery, “The Originalism Revolution Turns 30,” 3–4; Edwin Meese III, “Speech Before the D.C. Chapter of the Federalist Society Lawyers Division, November 15, 1985,” in Slattery, “The Originalism Revolution Turns 30,” 14–18.

71. Conversation with McGinnis. Gary Lawson catalogs this academically reactive phenomenon similarly: “Once you get not merely one—Scalia was enough—but two Supreme Court justices who start talking this way, you have to start teaching your constitutional law classes and explaining why whoever's at the Supreme Court is talking about this stuff. You can only laugh them off for so long. Eventually, you have to start taking notice that maybe the actual description of legal practice includes this as one of its components…Once it's at least part of the vocabulary, part of the set of arguments that are used to craft opinions, well, then you have to start crafting arguments in briefs. And if you want to take on actual decisions, you have to start writing articles that start talking in those terms.” Conversation with Lawson.

72. Rappaport, E-mail.

73. See, for example, Tulane Law Review 61:5 (1987); Constitutional Commentary 6:1 (1989); Maltz, “The Appeal of Originalism”; Maltz, Earl, “The Failure of Attacks on Constitutional Originalism,” Constitutional Commentary 4 (1987): 4356Google Scholar; Rotunda, Ronald D., “Original Intent, the View of the Framers, and the Roles of Ratifiers,” Vanderbilt Law Review 41 (1988): 507–16Google Scholar; Monaghan, Henry Paul, “Stare Decisis and Constitutional Adjudication,” Columbia Law Review 88 (1988): 723–73CrossRefGoogle Scholar; Farber, Daniel, “The Originalism Debate: A Guide for the Perplexed,” Ohio State Law Journal 49 (1989): 1085–106Google Scholar; Rakove, Jack N., ed., Interpreting the Constitution: The Debate Over Original Intent (Boston: Northeastern University Press, 1990)Google Scholar; Fallon, “A Constructivist Coherence Theory”; Dworkin, Ronald, Law's Empire (Cambridge, MA: Harvard University Press, 1986)Google Scholar; Tushnet, Mark, “The U.S. Constitution and the Intent of the Framers,” Buffalo Law Review 36 (1987): 217–26Google Scholar; Tushnet, Mark V., Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988)Google Scholar; Berger, Raoul, “Originalist Theories of Constitutional Interpretation,” Cornell Law Review 73 (1988): 350–54Google Scholar; Bennett, Robert, “Originalist Theories of Constitutional Interpretation,” Cornell Law Review 73 (1988): 355–58Google Scholar; McConnell, Michael W., “On Reading the Constitution,” Cornell Law Review 73 (1988): 359–63Google Scholar; Moore, Michael, “Originalist Theories of Constitutional Interpretation,” Cornell Law Review 73 (1988): 364–70Google Scholar; Nelson, William E., “History and Neutrality in Constitutional Adjudication,” Virginia Law Review 72 (1986): 1237–96CrossRefGoogle Scholar; Macedo, The New Right v. The Constitution; Sherry, Suzanna, “The Founders’ Unwritten Constitution,” University of Chicago Law Review 54 (1987): 1127–77CrossRefGoogle Scholar; Powell, H. Jefferson, “Rules for Originalists,” Virginia Law Review 73 (1987): 659–99CrossRefGoogle Scholar; Powell, H. Jefferson, “The Modern Misunderstanding of Original Intent,” University of Chicago Law Review 54 (1987): 1513–44CrossRefGoogle Scholar; Rakove, Jack N., “The Madisonian Moment,” University of Chicago Law Review 55 (1988): 473505CrossRefGoogle Scholar; Kay, Richard S., “Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses,” Northwestern University Law Review 82 (1988): 226–92Google Scholar; Levy, Leonard W., Original Intent And the Framers' Constitution (New York: Macmillan, 1988)Google Scholar; Chemerinsky, Erwin, “The Vanishing Constitution,” Harvard Law Review 103 (1989): 44104Google Scholar; and Kahn, Paul W., “Reason and Will in the Origins of American Constitutionalism,” Yale Law Journal 98 (1989): 449517CrossRefGoogle Scholar.

74. Bennett and Solum, Constitutional Originalism: A Debate, 8, 78; and O'Neill, Originalism in American Law and Politics, 192–93.

75. Greene, Jamal, “Selling Originalism,” Georgetown Law Journal 97 (2009): 671Google Scholar. Also see Luban, David, “Legal Traditionalism,” Stanford Law Review 43 (1991): 1035–60CrossRefGoogle Scholar; and Lawson, Gary, “Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?),” Boston University Law Review 96 (2016): 1457–79Google Scholar. Lawson describes this crucial shift as one made from the “political enterprise” of older originalists to the “intellectual” enterprise of second-generation originalists.

76. Sunstein, Cass R., “On Academic Fads and Fashions,” Michigan Law Review 99 (2001): 1251–64CrossRefGoogle Scholar.

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