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05/23/2017

More from Calvin TerBeek on the History of Originalism
Michael Ramsey

At the Faculty Lounge, Calvin TerBeek (guest-blogging): The Transition to Self-Conscious Originalism, 1977-1985.  From the introduction:

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). 

For his previous post, see here (and commentary by co-blogger Chris Green here).