The Conservative Incubator of Originalism: The Reagan Department of Justice

Abstract

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.