As The Roberts Court Turns 20, The Originalist Revolution Turns 40

"By the end of President Reagan’s administration, the originalist revolution was underway."

I published a new Op-Ed wit my Heritage Guide co-editor John Malcolm in the Washington Times. We explain how the originalist revolution began in the late 1980s, even if it would have been difficult to discern at the time.

Here is the opening:

As they celebrate the 250th anniversary of the Declaration of Independence next year, many Americans will remember fondly the patriotism and pageantry of the 1976 bicentennial. Few people were even aware of the bicentennial of 1987, the 200th anniversary of the signing of the Constitution.

Yet by the end of President Reagan's administration, the originalist revolution was underway. Indeed, with the benefit of hindsight, the preceding three years changed the course of the Constitution.

First, in 1985, Attorney General Edwin Meese III battled Justice William J. Brennan in a public debate about originalism. Second, in 1986, Reagan, after Meese's advice, elevated William H. Rehnquist to chief justice and nominated Antonin Scalia to the high court. Third, in 1987, though Judge Robert Bork's nomination was unfairly blocked, his unapologetic embrace of originalism set the template for future nominees.

The Roberts court turns 20 this year, but we should proudly celebrate the fourth decade of the originalist revolution.

And from the conclusion:

As the court continues to decide cases consistent with original meaning and reject precedents made up by legal activists in robes, we should be thankful for the wisdom of these four jurists. In the new edition of the Heritage Guide to the Constitution, which we co-edited, Justice Samuel A. Alito Jr. wrote, "If we can envision a Mt. Rushmore of originalism, the three visages we would see carved in stone are those of Robert Bork, Edwin Meese III and Antonin Scalia."

We would respectfully add one more visage to the mountain: Rehnquist. In the mere span of three years, these four individuals set the Constitution on a course correction. In 2037, on the Constitution's 250th anniversary, there will be a lot more to celebrate.

The Heritage Guide to the Constitution will ship next week. In many regards, this book is a testament to the originalist revolution.

Comments

[Stephen Lathrop]

The phenomena Blackman mischaracterized under the rubric Originalist Revolution started earlier than he thinks, during the Nixon Administration. The founding moment was not an open declaration, but a plotter's tactical draft. You can read it here:

https://www.greenpeace.org/static/planet4-usa-stateless/2024/11/41940985-powellmemorandumtypescript.pdf

If Blackman wants to honor the founding of Trump/MAGA, he owes more to Louis Powell than to the rest of the names, although Bork's similar advocacy began contemporaneous with Powell's. As early as 1971 Bork was already advocating a Trump-like attack on university endowments, if the universities would not rein in protest against the Vietnam War.

[David Nieporent]

The issue the famous Powell memo was addressing had nothing whatsoever to do with originalism. Powell was addressing a substantive issue, and not one primarily about the courts. His brief discussion of the legal system did not even consider appropriate methods of constitutional interpretation.

[Stephen Lathrop]

His brief discussion of the legal system did not even consider appropriate methods of constitutional interpretation.

Nieporent — Sure it did. You just overlooked that Powell was calling for a campaign of corporate-funded legal influence as an appropriate method of constitutional interpretation.

Powell was not a modern ideologue. He was a nuts-and-bolts power monger peddling the notion that right wingers controlled enough money to buy off the courts, along with the rest of government at all levels, and much of civil society. Powell wanted to look reasonable, not formidable. But he kept the memo mostly forthright and well organized. It enumerates those goals. Only flashes of personal resentment against social reformers show through.

The Powell Memo was a fascist plan for America, conceived to blueprint the notion that business elites ought to govern. It has largely been implemented. So you are right, It was substantive in prospect, and doubly so in retrospect. It does not get near the attention it deserves.

One factor deserves extra mention from present vantage. Powell apparently thought of the US Chamber of Commerce as a central institutional presence to carry his entire plan to completion. His memo did not call for or foresee the rush to build an array of competing right-wing force multipliers, all striving at once to advantage themselves by dark money political expenditures. And Powell might even have shrunk from calling for a Supreme Court as Trump/MAGA corrupt as the Roberts Court.

Powell was a right-wing visionary. But even he was unprepared a half century ago to advocate openly for the entire authoritarian oligarchy his methods proved capable to deliver. In that respect, a retrospective look at Powell makes him look at times even slightly constrained by the virtues of the system he plotted to destroy.

[JoeFromtheBronx]

Samuel Alito, who repeatedly ridiculed originalist concerns, seems to be a fair-weather originalist.

Then again, originalism (as one person here likes to underline by listing a bunch of versions) is hard to pin down. So, who is to say?

We have " legal activists in robes" now. The term "activist" again is somewhat, to use a fancy word, protean. Activism can mean the strong usage of judicial power in beneficial ways. Both Roe and Dobbs were "activist" in this fashion depending on who you ask.

If "activism" means misuse of judicial power, it is somewhat misleading. Judges have a significant role to play in our system of government. They are quite "active." The term is a buzzword.

To toss it out there, the same often is true with the term "superlegislature," which I saw used here recently.

Judges in some sense of the word "make law." They don't just find the rules they apply in the sky or merely by looking at what the founders (or the ones they prefer) say. That is a "Just So" version of judging. Judges also practice judicial review.

"Originalists" think this is appropriate. Again, what is often at issue is the specifics. So, e.g., it is "right" to overturn legislative limits on gun ownership, agency discretion, or how public universities select their student bodies in a variety of cases.

The devil is in the details. It is helpful to be aware of what is being done, including the value selection involved.

[Stephen Lathrop]

It is helpful to be aware of what is being done, including the value selection involved.

Not easy to discern whether that was written in a mood of conciliation or critique.

This is a case where more accuracy requires less-exacting poise. There has perhaps never been a philosophical undertaking as dependent on anti-awareness and self-deception as so-called, "originalism," in all its forms.

The legal goad to invent originalism was unwanted precedent. Legal doctrine compelled deference, which created a problem. How to get to preferred legal outcomes contrary to precedent, but do it by reliance on self-reassuring principles? The obvious answer? Tailor the principles to suit the goal.

Nothing about that motive required any special personal insight, much less introspection. On the contrary, the necessity was to accept uncritically a particular kind of self-seeking motivation. Then to build around it a superficially canonical structure. The aim has always been to bolster the self-confidence of people keen to indulge prejudice (in fairness, mostly cryptic prejudice of which they remain unaware), while also supplying a means to justify doing that to answer foreseeably critical counter-arguments.

It is for that reason that nothing done in the name of originalist jurisprudence is ever permitted review by legal outsiders, however objective. Academic historical experts—the scholars with expertise to say what happened in the past—are thus systematically shunned by originalists.

All originalist methods, of whatever style, share alike the supremacy of lawyers to operate the controls. That makes suspect the often bruited claim that a primary function of originalist methods is to apply extra-legal constraint to legal process. But keeping the method free of extra-legal review remains critically important to bolster the confidence of practitioners, while they use the method to get to whatever present-minded outcomes they intend.

Whether the decision makers have been aware of that or not, that is what they have done. Lacking training or insight to know better, the originalist decision makers presumed that reading history—which they are as qualified to do as anyone—is an activity alike with researching history—which they are not qualified to do at all. They never suspected that to achieve legal self-constraint by history and tradition, they would require the training and experience to research history. Which develops capacity to:

1. Formulate coherent historical queries about occurrences which have long-since been forgotten;

2. To use those queries to infer, support, and critique historically constrained narratives;

3. To do those inferences, and write those narratives, while using standards which reliably exclude anachronistic context.

And for would-be originalists, to do that while anachronistic context was almost the entire store of cognitive resources available to perform the task.

Make no mistake. Every significant so-called originalist decision has been handed down by law-trained professionals, in disregard of anything to do with extra-legal insight, while those still-living decision makers indulged their own present-minded expectations as standards of decision. That method breaks no historical ground. The bruited historical constraints never happen. Compared to pre-originalist canonical practice, the difference is that precedents cease to be obstacles.

[not guilty]

Actually, the godfather of originalism was Chief Justice Taney:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

Scott v. Sandford, 60 U.S. (19 How.) 393, 405 (1857).

It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognised as the people or citizens of a State whose rights and liberties had been outraged by the English Government, and who declared their independence and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

Id., at 407.

We refer to these historical facts for the purpose of showing the fixed opinions concerning that race upon which the statesmen of that day spoke and acted. It is necessary to do this in order to determine whether the general terms used in the Constitution of the United States as to the rights of man and the rights of the people was intended to include them, or to give to them or their posterity the benefit of any of its provisions.

Id., at 409.

[JoeFromtheBronx]

In the interview, Justice Kennedy said he had reservations about originalism, which seeks to interpret the Constitution as it was originally understood and has become the intellectual core of the conservative legal movement. Originalism is a starting place, the justice said, but it cannot be the whole story.

“The framers were not so self-assured that they thought they knew every component of liberty,” he said. “The meaning of liberty is disclosed over time.”

https://www.nytimes.com/2025/10/08/us/politics/justice-kennedy-interview-memoir.html

Trump is a fan of Kennedy's son Justin:

Justice Kennedy also confirmed that Mr. Trump is fond of his son Justin, who worked at Deutsche Bank when Mr. Trump, then a real estate developer, was a major client. His son “was instrumental in giving Trump some key things,” Justice Kennedy said, “and Trump likes him very much.”

[ScottK]

Serious people do not read screeds that can only be published in the joke publication Washington Times (or here).

Serious people read Dahlia Lithwick, Mark Stern, Amanda Marcotte, Jack Balkin, Marty Lederman, and all the other members of the club that will never, ever give any respect to Josh Blackman, professor for the clingers.

[Alpheus W Drinkwater]

Since originalists like Prof. Blackman rarely get their history correct, it isn't too surprising that they can't even get the history of originalism correct. The important thing to them is that it all fits the narrative.

[David Nieporent]

Who said Blackman was an originalist? And his history? He can't even get his present correct.