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Originalism As a Political Practice: The Right’s Living Constitution, 75 FORDHAM L. REV. 546-74 (with Robert Post) (2006)

Abstract

To whatever extent the Rehnquist Court actually executed a counterrevolution, surely a good deal of its inspiration came from “originalism,” from the view that the only acceptable method of interpreting the U.S. Constitution is to apply “the text and original meaning of various specific constitutional provisions.” Originalists attacked progressive Warren Court decisions as judicial usurpations in need of discipline and reversal. Drawing on the work of pioneer conservative academics like Robert Bork and Raoul Berger, originalism became a central organizing principle for the Reagan Justice Department’s assault on what it regarded as a liberal federal judiciary. Originalism was proudly embraced by aggressively conservative Justices like William H. Rehnquist, Antonin Scalia, and Clarence Thomas.Originalism remains even now a powerful vehicle for conservative mobilization, as can clearly be seen in recent popular opposition to the citation of foreign law.

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2006

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