San Diego Law Review


Jack N. Rakove

Document Type



Originalism is hot. A couple of decades ago, one might have thought that its death knell had sounded when the Supreme Court nomination of Robert Bork failed in the Senate. Although one wondered exactly what kind of originalism Justice Bork might have performed in practice, he was regarded as the theory's leading academic spokesman, and the defeat of his nomination might have served as a fatal blow to the cause. Within a few years, however, Justice Antonin Scalia published his lecture Originalism: The Lesser Evil, signaling that the cause remained alive and well. Although Justice Scalia's views of the practice of originalism have also evolved--and in ways that embarrass originalism--leading academic theorists--his endorsement offered a more sophisticated defense of the theory than had appeared, for example, in Attorney General Edwin Meese's public remarks on the subject. Today all observers of the Supreme Court know that Justices Scalia and Thomas are avowed originalists. Equally important, discussions of originalism flourish in law reviews, and the law school of this university has become a high temple of originalist pronouncements and conferences. To the casual observer musing without a data count to rely upon, originalism appears to number among the liveliest--if not the liveliest--topics of current writings in constitutional theory, and the effort to exploit it is no longer confined to a monopolistic pool of conservative academics.