Document Type

Article

Publication Date

2012

Publication Title

University of Louisville Law Review

Publication Title (Abbreviation)

U. Louisville L. Rev.

Volume

51

Issue

2

First Page

201

Last Page

238

Abstract

How has originalism become so politically successful? In answering this question, leading scholarship has focused on the ways in which political leaders, judges, and lawyers have cultivated popular support for originalism. In one account, legal academics, politicians, and judges have explained the legal merits of originalism as a method of interpretation: its political neutrality and its democratic legitimacy. In a second version, political leaders—in particular, the Reagan Administration and the judges it nominated—made apparent that originalism would often produce outcomes that social conservatives found satisfactory. With some exceptions, leading studies primarily address the contributions made by elites to rhetoric about and justifications for originalism, including those rationales based on judicial activism and judicial legitimacy.4

By focusing on arguments about the backlash against Roe v. Wade, this Article shows that an important justification for originalism—one based on the political consequences of “judicial activism”—emerged from interactions between activists, judges, and political leaders. However, these consequentialist contentions for originalism and against Roe emerged not in the academy or in the courts, but through dialogue between the elites, social-movement members, and the Grassroots Right. In 1980–1981, antiabortion advocates began arguing that Roe should be overruled because of the consequences of the Court’s activism: the creation of the antiabortion movement, the polarization of debate, and the effective preclusion of any meaningful legislative compromise.

As we shall see, these were not justifications for originalism as such but rather arguments against judicial activism and Roe. But as this Article will show, by the mid-1980s, Reagan Administration officials had seized on these consequence-based justifications and transformed them into arguments for originalism. Later, these contentions featured in the work of first-generation originalist scholars. As this Article shows, the politics of originalism have been conducted from the bottom up as well as from the top down.

There is a good deal at stake in understanding the role of social-movement activists and the Grassroots Right in creating consequence-based justifications for originalism. First, scholars sometimes adopt consequence-based attacks on Roe as accurate descriptions of movement responses to the decision. As this Article shows, by contrast, claims about backlash to Roe emerged from dialogue between New Right and antiabortion movement members and political leaders. We should be cautious about the historical validity of claims that have served so political a purpose.

Second, by so often focusing on the academics, politicians, and judges who have popularized consequence-based justifications for originalism, we have not fully captured the distinctiveness or importance of popular, judicial activism-based justifications for originalism. Some movement claims may appear to echo first-generation originalist arguments that activist decisions are undemocratic or even illegitimate. On closer examination, as this Article contends, grassroots claims against judicial activism have a distinctive language, and their purpose and rhetoric differ considerably from the arguments articulated by politicians and professors. As we shall see, these claims drew on the kind of natural law thinking rejected by first-generation originalists, invoking religious and moral concerns as much as democratic ones. Scholars should be more attentive to the uses, meaning, and purpose of these grassroots and movement claims.

For this reason, the materials assembled here suggest that the battle for the future of constitutional interpretation will not be won by whoever has the best theory. The politics of judicial philosophy have involved an unpredictable and highly contingent give-and-take between grassroots activists and the political and judicial elites. This will likely continue to be the case in the future.

My argument proceeds in three segments. Part II.A briefly sets out leading scholarship on the politics of originalism. Part II.B challenges current accounts by closely examining how a consequence-based justification for overruling Roe evolved in the 1980s. Drawing on the history, Part II.C examines the implications of this history for current studies of originalism. Part III briefly concludes.

Rights

© 2012 Mary Ziegler

Comments

First published in University of Louisville Law Review.

Faculty Biography

http://www.law.fsu.edu/our-faculty/profiles/ziegler

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