Last weekend the New York Times Magazine published a lengthy attack on originalism as a method of constitutional interpretation, and on its allegedly cynical advocates. Ed Whelan and John McGinnis have posted sound criticisms of Emily Bazelon’s article.
What I’ll add here is a comment on her discussion of the origins of originalism. Bazelon writes, “Originalism may sound like an old concept, but it’s actually a modern creation, one born of political exigencies. It dates to the aftermath of the Supreme Court’s 1973 decision in Roe v. Wade, which recognized a constitutional right to abortion.” As the fight against abortion became more central to Republican politics, she continues, Republican jurists needed to devise a high-minded justification for their opposition to Roe. A solution came from Robert Bork. “Bork said Roe erred not because abortion was wrong but because it created a right to privacy that could not ‘be found in the Constitution by any standard method of interpretation.’”
It’s true that there was nothing called “originalism” for most of American history. But the concept long predates the term. James Madison wrote in 1824: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”
Nor was the critique of Roe something invented by Bork to serve a political need. Bazelon quoted a 1982 speech by Bork. But in 1973, Laurence Tribe — who was assuredly not trying to find a way to aid the Republican Party or the pro-life movement — had written, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” The same year, John Hart Ely had written that Roe “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Conservatives didn’t have to invent a novel legal philosophy to resist Roe. It would be closer to the truth to say that the manifest lawlessness of the decision helped to inspire them to reexamine the foundations of law.