Challenging modern judicial power: The emergence of 'originalism' in American constitutional theory, 1954--1987.

摘要

This dissertation analyzes the elements of originalism as a form of constitutional interpretation and commentary, explains its emergence as a response to modern judicial power, and traces its development into a major component of American constitutionalism in the 1970s and 1980s. The dissertation argues that the content and timing of originalism derived, on one hand, from the centrality of the legal concepts of intent and original meaning to Anglo-American jurisprudence, and on the other hand from the fragmentation of the New Deal political coalition and emergence of the 'new conservatism.'; Originalist appeals to intent and history in the last 40 years continued an established, characteristic mode of thinking about the meaning and purpose of the Constitution. American jurisprudence inherited concern with original intent from the founding project of establishing republican government under a written Constitution and from the common law approach to statutory interpretation. In the early twentieth century appeals to original intent and historical meaning became majoritarian and even anti-judicial. Originalist criticisms of the Warren and Burger Courts were not wholly novel, but instead echoed Progressive attacks on the 'laissez-faire' Court of the pre-New Deal period.; Originalist constitutional criticism was aligned with, but not determined by, the conservative grassroots political movement that helped fragment the New Deal political coalition. The fragmentation of the coalition decreased support for a liberal, reformist judiciary and created the political space for a challenge to modern judicial power. From the late 1960s through the 1980s the majoritarian thrust of originalism supported legislative policies that frequently were more conservative than the likely results of litigation. Originalism also attracted scholars, politicians, and jurists because it defended the traditional approach to legal-constitutional interpretation, the separation of powers, and the proper role of the judiciary in the American constitutional system. The originalist reassertion of constitutional fundamentals interacted with the conservative politics of the 1980s and affected American constitutional commentary and law. The dissertation concludes with an examination of the nomination of Robert H. Bork, an originalist, to the Supreme Court in 1987, and then surveys the continued prominence of originalism in the 1990s.