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Originalism and the Academy in Exile

  • Paul Baumgardner

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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.

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1. See, for example, O'Neill, Johnathan G., Originalism in American Law and Politics: A Constitutional History (Baltimore and London: Johns Hopkins University Press, 2005); Dry, Murray, “Federalism and the Constitution: The Founders’ Design and Contemporary Constitutional Law,” Constitutional Commentary 4 (1987): 233–34; Bennett, Robert W. and Solum, Lawrence B., Constitutional Originalism: A Debate (Ithaca, NY and London: Cornell University Press, 2011); Kersch, Ken I., “The Talking Cure: How Constitutional Argument Drives Constitutional Development,” Boston University Law Review 94 (2014): 1083–108; Kersch, Ken I., “Ecumenicalism Through Constitutionalism: The Discursive Development of Constitutional Conservatism in National Review, 1955–1980,” Studies in American Political Development 25 (2011): 86116; Teles, Steven M., “Transformative Bureaucracy: Reagan's Lawyers and the Dynamics of Political Investment,” Studies in American Political Development 23 (2009): 6183; Southworth, Ann, “Lawyers and the Conservative Counterrevolution,” Law & Social Inquiry 43 (2018): 1698–728; Sawyer, Logan E. III, “Principle and Politics in the New History of Originalism,” American Journal of Legal History 57 (2017): 198222; Ziegler, Mary, “Originalism Talk: A Legal History,” Brigham Young University Law Review 2014 (2015): 869926; and Strang, Lee J., “Originalism and the Aristotelian Tradition: Virtue's Home in Originalism,” Fordham Law Review 80 (2012): 19972040.

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.

4. Fossum, Donna, “Law Professors: A Profile of the Teaching Branch of the Legal Profession,” American Bar Foundation Research Journal 5 (1980): 501–54; Elizabeth Mertz, Frances Tung, Katherine Barnes, Wamucii Njogu, Molly Heiler, and Joanne Martin, “After Tenure: Post-Tenure Law Professors in the United States,” Law School Admission Council, Grants Report 11-02 (October 2011): 3; and “Enrollment and Degrees Awarded, 1963–2012 Academic Years,” American Bar Association, Section of Legal Education and Admissions to the Bar, https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/enrollment_degrees_awarded.authcheckdam.pdf (accessed March 1, 2018).

5. “Enrollment and Degrees Awarded”; Kennedy, Duncan, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System, A Critical Edition (New York and London: New York University Press, 2004), 204–5; and Auerbach, Carl, Historical Statistics of Legal Education (Chicago: American Bar Foundation, 1997).

6. “Enrollment and Degrees Awarded.”

7. Fossum, “Law Professors: A Profile”; Mertz, Tung, Barnes, Njogu, Heiler, and Martin, “After Tenure”; Chused, Richard H., “The Hiring and Retention of Minorities and Women on American Law School Faculties,” University of Pennsylvania Law Review 137 (1988): 537–69.

8. David Trubek, Interview, January 29, 2016.

9. Minda, Gary, “The Jurisprudential Movements of the 1980s,” Ohio State Law Journal 50 (1989): 599662; Clark, Robert C., “The Interdisciplinary Study of Legal Evolution,” Yale Law Journal 90 (1981): 1238–74; Kissam, Philip C., “The Decline of Law School Professionalism,” University of Pennsylvania Law Review 134 (1986): 251324; Minow, Martha, “Law Turning Outward,” Telos 73 (1987): 79100; Thomas Morgan, Interview, December 8, 2017; Edmund Kitch, Interview, January 19, 2018; William Carney, Interview, January 11, 2018; Conversation with Earl Maltz, October 11, 2017; and Douglas G. Baird, Interview, November 29, 2017.

10. Priest, George L., “Social Science Theory and Legal Education: The Law School as University,” Journal of Legal Education 33 (1983): 440.

11. Hackney, James R., Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory (New York and London: New York University Press, 2012), 2.

12. See, for example, Reidinger, Paul, “Civil War in the Ivy,” ABA Journal 72 (1986): 6468; Fiss, Owen M., “The Death of the Law?Cornell Law Review 72 (1986): 116; Kronman, Anthony T., The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA and London: Belknap Press, 1993), 265–67; Harris, Ron, “The History and Historical Stance of Law and Economics,” in The Oxford Handbook of Historical Legal Research, ed. Tomlins, Christopher and Dubber, Markus (Oxford: Oxford University Press, 2018), 2342; Schwartz, Murray L., “Economics in Legal Education,” Journal of Legal Education 33 (1983): 365–68; Priest, George L., “The Rise of Law and Economics: A Memoir of the Early Years,” in The Origins of Law and Economics: Essays by the Founding Fathers, ed. Parisi, Francesco and Rowley, Charles K. (Cheltenham, UK and Northampton, MA: Edward Elgar, 2005), 350–82.

13. See Greene, Jamal, Persily, Nathaniel, and Ansolabehere, Stephen, “Profiling Originalism,” Columbia Law Review 111 (2011): 356418.

14. For more on the interpretivism/non-interpretivism divide, see Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980); Symposium, “Judicial Review and the Constitution—The Text and Beyond,” University of Dayton Law Review 8 (1983): 443831. According to Ely, the chief distinction between interpretivism and non-interpretivism centers on “the former indicating that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution, the latter the contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document.” Ely, Democracy and Distrust, 1. For more on originalism as one particular form of interpretivism, see Fallon, Richard H. Jr., “A Constructivist Coherence Theory of Constitutional Interpretation,” Harvard Law Review 100 (1987): 1211; and Bobbitt, Philip, “Is Law Politics?Stanford Law Review 41 (1989): 1245–46.

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). 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.

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): 821–72. 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.

21. Rehnquist, William H., “The Notion of a Living Constitution,” Texas Law Review 54 (1976): 698–99.

22. Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977).

23. Saphire, Richard B., “Judicial Review in the Name of the Constitution,” University of Dayton Law Review 8 (1983): 753.

24. Brest, Paul, “The Misconceived Quest for Original Understanding,” Boston University Law Review 60 (1980): 204–38. For Berger's response, see Berger, Raoul, “Paul Brest's Brief for an Imperial Judiciary,” Maryland Law Review 40 (1981): 138.

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.

29. See, for example, Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977); Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985); Sandalow, Terrence, “Constitutional Interpretation,” Michigan Law Review 79 (1981): 1033–72; Levinson, Sanford, “Law as Literature,” Texas Law Review 60 (1982): 373403; Tushnet, Mark, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” Harvard Law Review 96 (1983): 781827; Tushnet, Mark, “Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory,” Yale Law Journal 89 (1980): 1037–62; Ackerman, Bruce A., “The Storrs Lectures: Discovering the Constitution,” Yale Law Journal 93 (1984): 1013–72; Komesar, Neil K., “Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis,” University of Chicago Law Review 51 (1984): 366446; Brest, “The Misconceived Quest”; Brest, Paul, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” Yale Law Journal 90 (1981): 1063–109; Perry, Michael J., “The Authority of Text, Traditions, and Reason,” Southern California Law Review 58 (1985): 551602; Simon, Larry, “The Authority of the Constitution and its Meaning: A Preface to a Theory of Constitutional Interpretation,” Southern California Law Review 58 (1985): 603–46; Simon, Larry, “The Authority of the Framers of the Constitution: Can Originalist Interpretation be Justified?California Law Review 73 (1985): 1482–539; Bennett, Robert W., “Objectivity in Constitutional Law,” University of Pennsylvania Law Review 132 (1984): 445–96; Bennett, Robert W., “The Mission of Moral Reasoning in Constitutional Law,” Southern California Law Review 58 (1985): 647–59; Merrill, Thomas W., “The Common Law Powers of Federal Courts,” University of Chicago Law Review 52 (1985): 172; and Powell, H. Jefferson, “The Original Understanding of Original Intent,” Harvard Law Review 98 (1985): 885948.

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, 22; Kalman, Laura, The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1996), 133; and Berger, Raoul, “Academe vs. the Founding Fathers,” National Review, April 14, 1978, 468–71.

33. Bork, Robert H., The Tempting of America: The Political Seduction of the Law (New York: Touchstone, 1990), 135–36.

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

35. Ibid.

36. Ibid., 228.

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

38. 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.

41. Conversation with Lawson.

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

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): 363412.

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.

50. Ibid., 3.

51. Ibid., 3, 10.

52. 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): 5.

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

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): 118. 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).

61. Dworkin, “From Bork to Kennedy.”

62. Ibid.

63. Maltz, Earl, “Foreword: The Appeal of Originalism,” Utah Law Review 1987 (1987): 773805. 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): 983–95.

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

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): 107–19; 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): 141–45; and Hollis-Brusky, Amanda, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford and New York: Oxford University Press, 2015). 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): 4356; Rotunda, Ronald D., “Original Intent, the View of the Framers, and the Roles of Ratifiers,” Vanderbilt Law Review 41 (1988): 507–16; Monaghan, Henry Paul, “Stare Decisis and Constitutional Adjudication,” Columbia Law Review 88 (1988): 723–73; Farber, Daniel, “The Originalism Debate: A Guide for the Perplexed,” Ohio State Law Journal 49 (1989): 1085–106; Rakove, Jack N., ed., Interpreting the Constitution: The Debate Over Original Intent (Boston: Northeastern University Press, 1990); Fallon, “A Constructivist Coherence Theory”; Dworkin, Ronald, Law's Empire (Cambridge, MA: Harvard University Press, 1986); Tushnet, Mark, “The U.S. Constitution and the Intent of the Framers,” Buffalo Law Review 36 (1987): 217–26; Tushnet, Mark V., Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988); Berger, Raoul, “Originalist Theories of Constitutional Interpretation,” Cornell Law Review 73 (1988): 350–54; Bennett, Robert, “Originalist Theories of Constitutional Interpretation,” Cornell Law Review 73 (1988): 355–58; McConnell, Michael W., “On Reading the Constitution,” Cornell Law Review 73 (1988): 359–63; Moore, Michael, “Originalist Theories of Constitutional Interpretation,” Cornell Law Review 73 (1988): 364–70; Nelson, William E., “History and Neutrality in Constitutional Adjudication,” Virginia Law Review 72 (1986): 1237–96; Macedo, The New Right v. The Constitution; Sherry, Suzanna, “The Founders’ Unwritten Constitution,” University of Chicago Law Review 54 (1987): 1127–77; Powell, H. Jefferson, “Rules for Originalists,” Virginia Law Review 73 (1987): 659–99; Powell, H. Jefferson, “The Modern Misunderstanding of Original Intent,” University of Chicago Law Review 54 (1987): 1513–44; Rakove, Jack N., “The Madisonian Moment,” University of Chicago Law Review 55 (1988): 473505; Kay, Richard S., “Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses,” Northwestern University Law Review 82 (1988): 226–92; Levy, Leonard W., Original Intent And the Framers' Constitution (New York: Macmillan, 1988); Chemerinsky, Erwin, “The Vanishing Constitution,” Harvard Law Review 103 (1989): 44104; and Kahn, Paul W., “Reason and Will in the Origins of American Constitutionalism,” Yale Law Journal 98 (1989): 449517.

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): 671. Also see Luban, David, “Legal Traditionalism,” Stanford Law Review 43 (1991): 1035–60; and Lawson, Gary, “Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?),” Boston University Law Review 96 (2016): 1457–79. 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): 1251–64.

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.

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