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.

[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.

[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.