THE RE-FOUNDER (VIA TOM CORCORAN):

Originalist Thinking: Reagan revived the Founding. (Matthew J. Franck, 6/09/04, National Review)

[T]he Framers and their principles were at the heart of Reagan's presidential rhetoric. A search of his presidential papers shows that he talked about the Founders of the American political order more often than any president in living memory.* Ronald Reagan's entire package of public policies, foreign and domestic, was uniquely his own. But to an amazing extent, his public presentation of that package consciously harkened back to the Founding of the United States. And lest it be thought that this was simply the work of his speechwriters, it bears remembering — as others have recently noted — that Reagan was a superb editor of their work, and frequently the draftsman of the best bits in his speeches. The constant references to the Founding fathers in his rhetoric were quite deliberate on his part, and his speechwriters had to know that he wanted these references as part of his stock vocabulary. [...]

The apogee of his administration's efforts came in the second term. In 1985, Attorney General Edwin Meese gave a series of speeches calling for originalist jurisprudence, condemning activist precedents that were venerated on the left, and challenging the Court's claim to be the authoritative expositor of the Constitution's meaning. Newspaper editorials and columnists from coast to coast excoriated Meese as "lawless" and called for his resignation, but the president stood by him unflinchingly. In the fall of 1985, Justice William Brennan gave a notoriously impolitic speech at Georgetown that everyone understood to be a reply to Meese (though Brennan never mentioned his name), and the battle was truly joined. Did Americans believe they were governed by the Constitution their forefathers had made, or by a Supreme Court that used the Constitution as a tissue barely covering its ventures in social policymaking? Suddenly that question was all over the popular press, and it rapidly came to dominate law reviews and other academic outlets as well.

The following year, the elevation of William Rehnquist to be chief justice and the appointment of Antonin Scalia to the Court passed through the Senate relatively quietly. Then in 1987 came the great battle over Robert Bork's nomination to the Court. Reagan stuck with Bork to the end and suffered one of his rare prominent defeats as president. But in intellectual circles, the Bork fracas gave staying power to the debate that Ed Meese had begun. Old battles in constitutional law over "judicial activism" versus "judicial restraint" were supplanted by a much more fruitful discussion of "originalism" versus the "living Constitution" in its multifarious forms.

It was a debate that a growing cadre of originalists couldn't lose, because their arguments were so much better. The judicial imperialists in academe were at last flushed out of their warrens. They had to defend — legally, logically, historically, philosophically — the proposition that American democracy has wholly entrusted the defense of its fundamental charter to a set of unelected, uncontrollable jurists whose rulings must be respected if the republic is to endure, and whose task is to "keep the Constitution in tune with the times." (As Walter Berns said, this had it exactly backwards.) All the arguments for this proposition collapsed, some at the lightest touch of curiosity, others under a withering barrage of criticism. And the barrage came from Straussians and others in political science departments, from Federalist Society members in law schools, and from the pages of new journals that cropped up across the land to contest these sorts of questions.

Before Reagan, one could have counted the prominent originalists in constitutional law scholarship on one's fingers and had some left over (Bork, Berns, Raoul Berger, and a few others would have exhausted the list). Now there are originalists beyond counting, and a wealth of sound new scholarship — by law professors, political scientists, and historians — has sprung up on the Framers, the Supreme Court, and the philosophical underpinnings of the American Constitution.