The Transition to Self-Conscious Originalism, 1977-1985

Cross-Posted at The Faculty Lounge

On December 6, 1984, then-Judge Robert Bork gave a speech to the American Enterprise Institute (AEI) calling on conservatives to combat the theory emanating from the (liberal) legal academy. “Now we need theory,” Bork stated, “theory that relates the framers’ values to today’s world . . . It is necessary to establish the proposition that the framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”

This seems curious in light of the fact that originalists, in telling their own intellectual history, point to Robert Bork’s 1971 Indiana Law Journal article as proto-originalism and Rauol Berger’s 1977 Government by Judiciary as the theoretical point of congealment around original intent orignalism, the pre-cursor to original public meaning originalism. If indeed constitutional conservatives had homed in on Berger, original intent, and originalism, why would Bork be calling for more “theory” on this very point seven years after Berger’s book was published?

This answer is straightforward but has been overlooked: constitutional conservatives did not immediately congeal around Berger’s formulation and begin to call themselves “originalists.” In addition to the anachronism of imputing labels and motives to historical actors they would have not have recognized or accepted, it is also another data point that political scientists, historians, and legal academics have ceded this important terrain to originalists. Furthermore, it is also a small window into how ideas gain traction. In short, while Berger’s book was important, digging a bit deeper shows that original intent originalism was not inevitable, but one of a few existing narrative frames for constitutional conservatives before 1985 (and perhaps even after).

The vanguard of the conservative legal elite, then a “counter-elite,” met at Georgetown University in the fall of 1977 to discuss the role of the judiciary in American constitutional government. Among the attendees were Robert Bork, then a law professor at Yale, future Reagan circuit court appointee Ralph Winter, University of Chicago law professor Phillip Kurland, the neoconservative Nathan Glazer, and Edith Efron, author of The News Twisters, a tout court book in Nixon White House. Although much of the discussion at the conference regarding constitutional interpretation still revolved around “interpretivism,” described as “more in keeping with historical intent,” and strict or loose constructionism, Raoul Berger’s Government by Judiciary, yet to be released, had already made an impression on the attendees—it was explicitly namechecked by Kurland. (This draws in part on Jefferson Decker’s important new work).

As Ken Kersch has argued, the reception among conservative intellectuals to Berger’s book, a scholarly polemic designed to demonstrate that the modern Court’s equal protection jurisprudence had strayed far from “the intention of the framers,” was enthusiastic. But it is important to understand the content of the reception. For example, William F. Buckley’s review in National Review and James Kilpatrick’s in Human Events both lauded the book primarily for its putative undercutting of the race conscious jurisprudence of the Warren and Burger Courts.

Instead of being a “critical juncture,” Berger’s book is best understood as a node in the secular, but not inevitable, rise of originalism. Before 1985, conservative constitutional discourse contained multiple competing narratives. Berger’s refrain of “framer’s [(or original)] intent,” jockeyed alongside Bork’s “interpretivism,” Harry Jaffa’s “Declarationism,” remnants of Warren Court-era calls for “strict constructionism,” and simple appeals to power politics as the New Deal coalition faded and Reagan came to power.

Consider the Harvard Journal of Law & Public Policy, an academic law journal started by a conservative Harvard Law School student that became the de facto academic organ for the Federalist Society, reprinting the speeches from its symposia each year. In 1983, the Federalist Society held a “Symposium on Judicial Activism” and the contributions were published in the Harvard journal the following year. If the conservative movement had indeed coalesced around originalism, one would expect to see originalism proliferate by this date in this forum. Instead, University of Texas law professor Grover Rees III criticized “noninterpretivism” and praised Bork’s “interpretivism.” While Free Congress’s Patrick McGuigan invoked “original intent,” the central purpose of his article was to praise “the Judge Bork approach [interpretivism] and the Paul Weyrich approach” the latter of which was “simply removing federal judges’ jurisdiction” over “policy questions.” Dallin Oaks, a justice on the Utah Supreme Court, summarized the state of the debate in 1984 for the Federalist Society in the conservative Harvard law journal:

Most of the past debate on judicial activism has featured dichotomies and either-or alternatives. We have had natural law or higher law and their opposites. We have had strict construction and the other kind. We have had interpretivism and noninterpretivism . . . Legal theories are often more satisfying than the practical reality of the results they produce. Thus, Professor Raoul Berger’s Government by Judiciary has been praised for its logic and its illuminating use of history, but not many can accept the practical implications of its theory. Even its author shrinks.

The debate in the law reviews during this time period is equally instructive. While originalists note that liberal law professor Paul Brest coined the term originalism, they fail to note how the term (often labeled a “neologism”) was intimately connected with Brest. Time and again, law review articles during the early 1980s would connect the term with Brest, not conservative intellectuals or justices. And invoking originalism (and Brest) was not the sole frame. One conservative legal academic, writing in 1983, justified his usage of “the interpretive-noninterpretive terminology” by citing Berger and stating, “commentators have used it more frequently.” Indeed, Berger, in responding with evident sarcasm to Brest’s critique, admitted to being an “originalist,” using the term in scare quotes. And as late as 1985, after Meese’s July ABA speech, Bork lectured at University of San Diego referring to his preferred method of interpretation as “intentionalism.” [Citations available].

Further consider the debate in the pages of National Review. In 1980, Berger wrote that the “intent and understanding of the Framers” was the proper approach, while Jaffa argued for the importance of the Declaration of Independence to understand the American constitutional project. Rees combined references to “ascertaining the Framers’ intention,” and “discerning the original understanding,” but filed it under an appeal for a “constructionist Supreme Court,” an appeal echoed in 1984 by Joseph Sobran for “strict constructionism.” Buckley wrote that, “The courts have been ideologized, Right and Left, for generations . . . if there’s going to be activism, there is going to be counteractivism . . . [and] people looking for judges whose values coincide with their own.” Cornell law professor Irving Younger wrote: “For a president not to insist upon some assurance of ideological congeniality in a prospective federal judge would be inconsistent with the true nature of federal judicial power.” A dispatch from the 1981 meeting of The Philadelphia Society—a group of conservative intellectuals, including Milton Friedman and L. Brent Bozell, founded in 1964—saw some in the movement championing natural law theories of the Constitution; another article on the Court that same year stressed the virtues of “strict constructionism and judicial restraint.” Speaking of the larger battle between conservative and liberal law professors, Bork wrote in November 1982, that “new struggle for intellectual dominance in constitutional theory is under way at this moment,” declaring, “My own philosophy is interpretivism.”

Prior to 1985, then, the evidence suggests the conservative legal movement had not congealed around an agreed upon narrative–constitutional conservatives circled uncertainly. We need to be skeptical of originalists’ claims of a linear rise of originalism as the theory grew increasingly “sophisticated” (as its proponents’ histories tell us). There is more contingency in the story than the received wisdom would have us believe. And all this begs the question: what institutions and actors can we point to for the eventual success of originalism? I hope to address this in a forthcoming post.

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