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Gienapp’s Big Book: Conceptual Rupture, Modernism, and the End of Originalism
Sawyer, Logan
Sawyer, Logan
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Abstract
For decades, we have lived in an age of partisan jurisprudence, in which nearly every Republican has embraced originalism, and nearly every Democrat has rejected it. One can mark the start of that era in multiple places, but one good choice is November 11th, 1977. That day, in the pages
of National Review, William F. Buckley previewed Government by Judiciary, Raoul Berger’s originalist critique of the Warren Court’s rights revolution. The review, entitled “Berger’s Big Book,” was highly complimentary. Berger’s rebuke of Warren Court activism was, Buckley
thought, “devastating.” And he was not alone. Following the publication of Government by Judiciary, the conservative intellectuals who congregated around Buckley’s magazine made a sharp turn towards originalism.
Attorney General Ed Meese ratified the shift in 1985 by adopting originalism as official government policy, a move that conservative interest groups and the emerging conservative legal movement quickly followed. Buoyed by their new political authority, those lawyers almost immediately transformed Berger’s originalist call for minimizing the role of the Court into a “new” originalism comfortable with what its critics call conservative judicial activism but what its advocates call “engagement.” As the New Right of the 1980s took Berger’s arguments in these unexpected directions, his work both marked and contributed to the emergence of originalism—and thus also of partisan jurisprudence.