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Originalist Thinking
Reagan revived the Founding.


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As the nation mourns the death and celebrates the life of Ronald Reagan, he is remembered chiefly for winning the Cold War, reviving the nation’s economy, and resuscitating the optimistic spirit and patriotism of the American people. These are undeniable, monumental accomplishments. But we should not forget another of President Reagan’s accomplishments, one that is nearly as momentous, and which undergirds all his other achievements. That is his intellectual commitment to the Framers’ constitutionalism–an attention to the principles of our constitutional order that looked back to the Founding for inspiration, for wisdom, and for guidance, in order to move the country forward.

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Much has already been said in the last few days about how Reagan was a “big-picture” president, not a “detail” president, how he kept his eye on a handful of great goals and didn’t trouble himself with the minutiae of public policy. Quite true. But sometimes this comes across as damning with faint praise. Some commentators seem to mean by this characterization that Reagan succeeded despite some sort of intellectual deficiency–that he concentrated on a few simple ideas because they were all he could handle. This is unjust.

No one would argue that Ronald Reagan could recite great chunks of the Federalist papers by heart or had anything about him of the moth-eaten scholar rummaging through musty archives. But his philosophy of freedom was solidly grounded in the teachings of the American Founding, and he knew those teachings well. The work and the legacy of the Framers, and a serious concern for restoring their principles, were at the center of Reagan’s governing decisions, as Andrew E. Busch clearly shows in his recent book, Ronald Reagan and the Politics of Freedom.

Just as importantly–more importantly in some respects–the 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 impact of Reagan’s restoration of America’s attention to its Founding was wide and deep. Of course, Reagan was president at the time of the Constitution’s bicentennial, which itself generated renewed interest in the Founders and their handiwork. But does it owe nothing to him that in the past 20 years a swelling number of best-selling books has been published on George Washington, John Adams, Alexander Hamilton, Benjamin Franklin, and other members of the Founding generation? I doubt it.

So much for width. What about depth? A good case can be made that Reagan helped to make scholarly attention to the American Founding, and especially the development of originalist thinking about the Constitution, intellectually respectable in the academy. When Ronald Reagan was elected president, I was in my first semester of graduate studies in political philosophy, the American Founding, and constitutional law. My teachers and most of my classmates in constitutional law were conventionally liberal adherents to the ideas of a “living Constitution” and an imperial judiciary–that strange combination of notions that says that the Constitution has no settled meaning but the Supreme Court has a settled power to say what it means from one day to the next. Knowing that President Reagan and his administration publicly challenged both of these ideas was a great comfort to the hardy few of us who thought there was something badly wrong with the received wisdom. Knowing Reagan was on our side–despite or even because of the fact that his views were derided in the academy–helped us to challenge the dominant view ourselves.

The Reagan challenge to decades of complacently activist thinking about the Constitution and the Supreme Court came on many fronts. From abortion to school prayer to busing and affirmative action, from soft-on-crime readings of the Bill of Rights to pornography, from separation of powers to federalism and limited government, Reagan hammered on the theme of returning to the Constitution the Framers had bequeathed us, and he did it in speeches, interviews, press conferences, proclamations, prepared statements, bill signings, and nominations to the bench. Over and over he made the simple, compelling argument that the job of judges is to interpret the law of the Constitution, not make it, and that interpretation properly understood means coming to terms with the understanding of the Constitution held by those who had made and ratified it.

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.

There is still much to be done. Three originalists on the Supreme Court (Rehnquist, Scalia, and Thomas) are not enough–and even they are not all they could be. Academic thinking on the Constitution is still sadly dominated by the adversaries of authentic constitutionalism. Change seems to happen at a glacial pace in the legal academy–a frustrating phenomenon when one compares it to the momentous changes wrought by Ronald Reagan in the American economy and the international scene. But change is happening. And it owes a great deal to Reagan, who understood two things: that the America he set out to save must be worth saving, and that to be worth saving it must remember itself as the country our founders made. He may not have started the battle over the Constitution, but he gave legions of academic warriors the energy to finish it. The rest is up to us.

*Using published presidential papers, and comparing him to his nine predecessors from Hoover to Carter, I found that Reagan mentioned the “Framers” or the “Founding Fathers” more often than all of them combined, and the “Founders” about three quarters as many times as the others combined.

Matthew J. Franck is a professor and chairman of political science at Radford University.



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