Originalism was a fringe legal theory when it was developed beginning in the early 1970s. It arose in reaction to the perceived excesses of the Warren Court, which had worked a legal revolution in the 1950s and 1960s with freewheeling decisions on the rights of criminal defendants, civil liberties and voting rights — among other issues — that conservative critics said were grounded in the majority’s policy preferences more than in the Constitution itself.
Among those developing an alternative, and supposedly more legitimate, legal theory was Robert H. Bork, then a Yale Law School professor. In a 1971 Indiana Law Journal article that was to become famous during his failed Supreme Court confirmation hearings 16 years later, Bork first laid out what came to be called originalism. (The term was coined by a liberal critic, Stanford Law professor Paul Brest.) “Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other,” Bork wrote. “The judge must stick close to the text and the history, and their fair implications, and not construct new rights.”
Bork’s prime example of where the court had gone wrong is one that helped doom his nomination — and remains chilling today: Griswold v. Connecticut, the 1965 case that, citing “zones of privacy” in the Constitution, struck down a Connecticut law making it a crime for married couples to obtain contraception. He termed Griswold “an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it,” adding, “the only course for a principled Court is to let the majority have its way.”
Bork’s mantra was taken up a decade later during the Reagan administration, with Attorney General Edwin Meese III championing a “jurisprudence of original intention.” That approach, Meese argued in a 1985 speech to the American Bar Association, “would produce defensible principles of government that would not be tainted by ideological predilection.” By contrast, he said, “any other standard suffers the defect of pouring new meaning into old words, thus creating new powers and new rights totally at odds with the logic of our Constitution and its commitment to the rule of law.”
What began as a hunt for “original intent” evolved into a search for “original public meaning,” after adherents recognized that different Founders had different intentions in writing and ratifying the document. But the stated goal remained the same: to provide a supposedly neutral guide by which judges could reliably interpret the Constitution — and avoid substituting their personal views. By the 1990s, originalism was the interpretive approach broadly endorsed by the conservative legal movement.