Forty Years of Originalism

In: Policy review: the journal of American citizenship, Heft 173

Abstract

In the immediate aftermath of his 2010 election as the newest senator from Utah, Mike Lee spoke before a crowd of enthusiastic practitioners, scholars, and students at the Federalist Society National Lawyers Convention. Senator Lee focused on the role of Congress in constitutional interpretation, and he ended his remarks with the following pledge: "I will not vote for a single piece of legislation that I can't reconcile with the text and the original understanding of the U.S. Constitution." The senator's pledge highlights a remarkable fact about American constitutionalism today: Only a generation removed from the constitutional revisions of the Warren and Burger Courts, originalism has not only established itself as a respectable interpretive theory in the federal judiciary, but it has also been taken up by some members of Congress. Such a state of affairs was unthinkable decades ago when, as Judge Robert Bork characterized the conventional wisdom of the era, lawyers came to "expect that the nature of the Constitution [would] change, often quite dramatically, as the personnel of the Supreme Court change[d]." But it was precisely because of an article by then-Professor Bork that so much has changed and that Senator Lee's pledge was possible. Bork's 1971 article in the Indiana Law Journal, "Neutral Principles and Some First Amendment Problems," is widely recognized as having launched modern originalist theory. Thus, having just passed the 40th anniversary of that landmark essay, it is appropriate that we survey how modern originalism began, how it has changed, and what challenges lie ahead. Adapted from the source document.