Originalism in American Law and Politics: A Constitutional History (The Johns Hopkins Series in Constitutional Thought)

294 Pages·2005·1.09 MB·English

by  Johnathan O'Neill

Originalism in American Law and Politics
The Johns Hopkins Series in Constitutional Thought
Sanford Levinson and Jeffrey K. Tulis, Series Editors
Originalism in American
Law and Politics
A Constitutional History
Johnathan O’Neill
The Johns Hopkins University Press
Baltimore and London
© 2005 The Johns Hopkins University Press
All rights reserved. Published 2005
Printed in the United States of America on acid-free paper
Johns Hopkins Paperback edition, 2007
9 8 7 6 5 4 3 2 1
The Johns Hopkins University Press
2715 North Charles Street
Baltimore, Maryland 21218-4363
www.press.jhu.edu
The Library of Congress has catalogued the hardcover edition of this book as follows:
O’Neill, Johnathan G. (Johnathan George)
Originalism in American law and politics : a constitutional history / Johnathan O’Neill.
p. cm. — (Johns Hopkins series in constitutional thought)
Includes bibliographical references and index.
ISBN 0-8018-8111-0 (hardcover : alk. paper)
1. Constitutional history—United States. 2. Law—United States—Interpretation and
construction—History. I. Title. II. Series.
KF4541.O54 2005
342.73029—dc22
2004023572
ISBN 13: 978-0-8018-8760-4
ISBN 10: 0-8018-8760-7
A catalog record for this book is available from the British Library.
For Rebecca
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Contents
Preface ix
Introduction 1
1 From Textual Originalism to Modern Judicial Power 12
2 Modern Judicial Power and the Process-Restraint Tradition 43
3 The Return of Originalist Analysis in the Warren Court Era 67
4 At the Crossroads: The Originalist Idea in Post–Warren 94
Court Politics and Jurisprudence
5 Raoul Berger and the Restoration of Originalism 111
6 Originalism in the Era of Ronald Reagan 133
7 Robert Bork and the Trial of Originalism 161
8 Originalism in the 1990s: The Transformation of Academic 190
Theory and the Limitations of Practice
Notes 217
Index 277
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Preface
This book examines the originalist conception of constitutional authority and
explains why it became a signifi cant component of American political life
after World War II. The core originalist idea—that “the intent of the law giver
is the law”—is rooted in longstanding principles of Anglo-American constitu-
tionalism. While the originalist idea embodies basic commitments from the
nation’s founding and the tradition that led to it, the reasons for the reappear-
ance of originalism since the 1960s went beyond those deep roots. A variety of
changes in the postwar period again made originalism attractive as a matter of
both politics and constitutional jurisprudence, and this book traces the devel-
opment and elaboration of originalism as both a political and a constitutional
idea. This approach neither reduces law to politics nor denies the infl uence of
politics on the law. As a history of constitutional thought in its political con-
text, this work addresses a subject now more commonly treated by academic
lawyers and political scientists. It is hoped that historians, who in the past
accounted more carefully for constitutional issues, will also fi nd this study a
useful contribution to understanding twentieth-century America.
It is a pleasure to acknowledge the friends and colleagues who have aided me
in the completion of this book. My greatest debt is to Herman Belz, scholar,
teacher, and friend. His wisdom, generosity, and example have sustained me
in innumerable ways, both professional and personal, and I will always be
grateful that I was his student. Gary McDowell provided me with the cru-
cial opportunity, encouragement, and welcoming friendship that enabled my
ideas to mature. My understanding of originalism was deepened and clarifi ed
by his scholarship on the nature of a written constitution, as well as by his
comments on an important early reading of the manuscript. I very much ap-
preciate the interest that Sanford Levinson took in this volume. As with so
many other works of constitutional scholarship over the years, this one could