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Originalism and the Academy in Exile

Published online by Cambridge University Press:  20 June 2019

Paul Baumgardner
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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
Information
Law and History Review , Volume 37 , Issue 3 , August 2019 , pp. 787 - 807
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.

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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.

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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.

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