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Originalism and the Academy in Exile

Published online by Cambridge University Press:  20 June 2019


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.

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

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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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18. Ibid., 1137.

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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, (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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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, (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): 363412Google Scholar.

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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.

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

61. Dworkin, “From Bork to Kennedy.”

62. 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.”

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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.

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