Originalism and the Academy in Exile

Abstract

Although constitutional originalism has attracted a remarkable degree of public and professional attention over the past several decades, little research has been conducted on the intellectual roots of modern originalism. This Article finds that American law schools housed few originalist theorists through much of the 1970s and early 1980s. However, after Edwin Meese III became U.S. Attorney General in 1985, the Department of Justice constructed a vibrant academy in exile, with government lawyers leading the way in the early development, theorization, and exercise of originalism. In addition to becoming the official mode of constitutional interpretation for Meese and the DOJ, originalism started to gain followers on the federal bench and within conservative social movements during the second half of the 1980s. As constitutional originalism grew in influence and professional use, academic interlocutors began engaging with and reimagining originalism more intently.

The Law: “Beyond the Torture Memos: How the Office of Legal Counsel Matters for Executive Branch Scholarship”

“…Scholars of the conservative legal movement have argued that the DOJ under Attorney General Meese acted as a kind of "academy in exile" (Baumgardner 2019; see also Hollis-Brusky 2011; Teles 2009), generating intellectual capital to legitimate certain legal ideas, such as originalism and the unitary executive theory. Teles (2009) analyzes the Reagan-era DOJ as a "transformative bureaucracy," where political appointees invested in a "political support structure" to nourish certain ideas, to strengthen sympathetic organizations, and to cultivate personnel who would go on to lead the conservative legal movement.…”

Ronald Reagan, the Modern Right, and…the Rise of the Fem-Crits

“…Constitutional originalists grew within the U.S. Department of Justice and the federal bench during Ronald Reagan's second term in the White House. At the same time, the Religious Right began asserting originalist claims and wielding historical materials to support the pro-life cause (Baumgardner 2019a;Ziegler 2015). Conservative Christian legal thinking and teaching also took root during the 1980s, with the ascent of new natural law scholarship and the expansion of Christian law schools and evangelical movement lawyering (Finnis 1980;Grisez et al 1987;Bennett 2017;Kothe 1980;O'Brien 1984).…”

The Law: “Something He and His People Naturally Would Be Drawn To”: The Reagan Administration and the Law‐and‐Economics Movement

“…But unearthing “the Reagan of history” during this period of legal transformation has proven to be a complicated task (Cooper , 831). Scholars have explored topics such as the role of the Reagan administration in the strengthening of constitutional originalism (Baumgardner ; Keck ) and the abilities of reconstructive presidents, such as Reagan, to construct new regimes (Skowronek ; ). But pinpointing the Reagan administration's exact position in the multifaceted conservative legal movement of the 1980s has proven tricky, as has mapping President Reagan's role in the shifting legal consciousness of the decade.…”