Cross-Posted at The Faculty Lounge
The standard account of the origins of originalism, especially those set forth in the law reviews, is that Robert Bork’s 1971 Indiana Law Journal article building on neutral principles was proto-originalism, the beginnings of what we now know as original public meaning originalism. (Political scientists appear to have accepted this narrative). This account is not confined to academic settings—National Review’s Matthew Franck translated Bork’s article for a later generation of conservatives in an article titled, “The Original Originalist.” But the story appears to be more complex than generally supposed. While Bork invoked “framer’s intent” and privileged reliance on “text and history,” these analytical constructs had already taken hold on the Right as a way to critique Brown and as a shorthand to attack Warren Court “sociological” jurisprudence.
“When the constitutional materials,” Bork wrote in his canonical article, “do not clearly specify the values to be preferred, there is no principled way to prefer any claimed human values to the other. The judge must stick close to text and history, and their fair implications, and not construct new rights.” This purportedly set forth “the core originalist proposition.” (See Jonathan O’Neill’s widely cited history of originalism).
Bork also spoke of the “framer’s intent”; what “the men who put the amendment in the Constitution intended”; that “Value choices are attributed to the Founding Fathers, not to the Court”; judges must accept a legislative choice “unless it runs clearly contrary to a choice made in the framing of the Constitution”; averred judges cannot put into place what the “framers omitted”; and he highlighted that the “principle of one man, one vote . . . runs counter to the text of the fourteenth amendment [sic], the history surrounding its adoption and ratification, and the political practice of Americans from colonial times up to the day the Court invented the new formula.”
Importantly (and a point we will return to below), while Bork admitted, “The Court cannot conceivably know how these long-dead [Fourteenth Amendment framers] would have resolved [modern-era equal protection claims] had they considered, debated and voted on each of them,” he argued that Brown could be saved by fashioning “a purely juridical rule” (but not by “consideration of psychological test results”): that the framers of the Fourteenth Amendment “intended to enforce a core idea of black equality against governmental discrimination.”
Bork, in other words, was invoking ideas and concepts that would form the theoretical template of self-conscious originalism unveiled as a theory/movement—the two strands are nearly impossible to separate—in Reagan Attorney General Edwin Meese’s July 9, 1985 speech to the ABA.
But Bork’s language, though academic in tone, would have rung familiar to conservative ears. In 1960, Senator Barry Goldwater’s ghost-written The Conscience of a Conservative talked about constitutional rights claims in a similar manner. “For the federal constitution,” Goldwater intoned, “does not require the States to maintain racially mixed schools.” Through L. Brent Bozell, a National Review editor and de facto author of this popular political tract, Goldwater sought to demonstrate this with repeated invocations of the “intentions of the founding fathers” and the “intentions of the Fourteenth Amendment’s authors.” Bork, who served as an academic adviser, along with Milton Friedman, to the Goldwater campaign almost certainly would have been familiar with this line of reasoning.
Building on Conscience, Bozell set out to demonstrate to NR-style conservatives the historical mistake the Court made in Brown in The Warren Revolution (1966). A relatively quiet polemic, The Warren Revolution’s introduction is sophisticated and at times scholarly in tone. Bozell’s thesis was straightforward: until 1954, the year Brown was handed down, the “fluid” provisions of the Constitution, such as the Fourteenth Amendment’s equal protection clause, had been decided on the basis of interbranch dialogue. No one department of government dictated the meaning of these open-ended provisions; instead, through “organic processes” constitutional politics were settled collectively. (Impressively, the idea of interbranch dialogue in constructing constitutional meaning prefigures well-known legal scholarship from the 1990s).
However, the Warren Court, “with the encouragement of the country’s intellectual establishment,” had instituted a form of judicial supremacy. Brown was the epitome of this troubling trend. Prior to 1954, the “race problem” was, as “the original framers in effect decided,” left to be solved through interbranch coordination. No more. The Brown decision, relying on “psychological and sociological treatises” which were mere “opinion rather than fact” ignored “the views of the Constitution’s framers.” Mocking the Court’s reasoning—the Fourteenth Amendment’s framers “after all, had not read Freud”—Bozell reasoned that, “in 1954, thanks to the sociologists and the psychologists” the Court had taken upon itself write a “concept” of equality “into the Constitution.” Fond of italics, Bozell summed up his argument thusly: “The States that ratified the Fourteenth Amendment, equally with the Congress that proposed it, had no intention of outlawing separate schools” (all italics are Bozell’s).
One year later, at Thurgood Marshall’s confirmation hearing, North Carolina Senator Sam Ervin, a supporter of segregation and Jim Crow, engaged in a lengthy colloquy with the nominee that focused on the need “to ascertain and give effect to the intent of the framers of the Constitution.” Ervin and other conservative Southern Democrats would again and again refer to the framers and their intent, but as Laura Kalman demonstrates in her must-read new history, neither Ervin nor South Carolina Senator Strom Thurmond directly mentioned Brown.
Nevertheless, Thurmond repeatedly asked Marshall for his thoughts on the “original Constitution” (this was his most frequently used phrasing), the “original understanding,” the Constitution as “originally framed,” and the “original intent.” Indeed, Thurmond repeatedly quoted John Bingham to ask if this famous framer’s intent was relevant to interpreting “the scope of the equal protection clause as originally understood and intended by the framers in regard to the right to vote . . . enter desegregated schools, or engage in miscegenation?”
(As a point of comparison, these proto-originalist framings do not seem to appear in the confirmation hearings of Justices White, Stewart, Whittaker, Brennan, or Harlan; though Goldberg’s 1962 hearings contain numerous reference to “original intent” or the “framers intent” and Brennan was asked by the virulently racist Mississippi Senator James O. Eastland “whether current theories of psychology and sociology” change the meaning of the Constitution. (In 1955, Eastland, as historian Michelle Nickerson notes, “sponsored a resolution asking for an investigation of the ‘alleged scientific authorities upon which the Supreme Court relied’ in the Brown decision”)).
What appears to set Bork’s 1971 theoretical template apart, then, is not concepts, but the result: Bork defended Brown based on a “purely juridical rule.” (Though he was quick to add “that, cases of race discrimination aside, it is always a mistake for the Court to try and construct substantive individual rights under the due process or the equal protection clause”). By the time Bork delivered his lecture in 1971, racial mores were shifting and Brown‘s status as part of the canon had begun to solidy. In addition to Thurmond’s refusal to criticize the case at Marshall’s hearings, in 1968 GOP candidate Richard Nixon affirmed his agreement with Brown.
Of course, the concepts of original intent (meaning), text, and history have been part of constitutional law and our shared constitutional grammar since the days of the Marshall Court. And only so much can be said in a blog post. But for too long scholars have ceded the intellectual history of originalism to originalists (Gienapp/Barnett is key here). (Originalism is now hegemonic on the Right–it has conflated with constitutional conservatism, and it defines any deviation from the original public meaning as a deviation of from the Constitution itself. It is not only a powerful narrative, it is a powerful idea. As such, its intellectual history is important.
If Bork, a creature of postwar movement conservatism, and the theoretical tools he developed as proto-originalism, were (re)developed to challenge Brown — both a testable proposition and one worth diving into — this is an intellectual lineage, originalists must grapple with.