73 Pages Posted: 24 Aug 2017 Last revised: 15 Sep 2017
Date Written: July 29, 2017
Previous accounts of the Reagan Department of Justice’s role in promoting originalism are notably external: they either focus solely on the efforts of Attorney General Edwin Meese III or rely on evidence created well after the 1980s. This essay takes a different approach: it examines a plethora of the Department’s archival records, with particular emphasis given to the Office of Legal Policy. The revisionist narrative presented suggests that the Department served as a conservative incubator for originalism. That is, it compiled several abstract, fringe-right-wing legal theories, intellectually honed them, and repackaged them into a concrete and seemingly innocuous interpretive method that could be easily marketed to both the legal community and the public. While the intellectual origins of originalism within the Reagan Administration can largely be attributed to a small group of Administration elites (including Patrick Buchanan, John Roberts, Fred Fielding, and Meese), most of its popularization is thanks to the strategic, conservative plan crafted by Assistant Attorney General Stephen Markman and others within his subdivision, the Office of Legal Policy. Altogether, the written record helps lay to rest the notion that the Reagan Department of Justice did not purposefully imbue originalism with conservatism.
Notes: This paper was submitted in partial fulfillment of the requirements for the Master of Arts degree in the Master of Arts Program in the Social Sciences at the University of Chicago. Questions, feedback, and publication inquires are welcomed via email.
Keywords: Originalism, Conservatism, Reagan Administration, Department of Justice, Office of Legal Policy, Transformative Bureaucracy, Steven Teles, Edwin Meese III, Stephen Markman, Patrick Buchanan, John Roberts, Fred Fielding, 1980s
Suggested Citation: Suggested Citation
Gallagher, Patrick F., The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365