Originalism and Its Discontents: The Legal and Political History of Postwar Conservative Constitutional Theory

Session Abstract

Political histories of postwar conservatism have grown increasingly sophisticated in recent years, attending not only to the movement’s successes, but also its setbacks and internal tensions. The legal history of conservatism, in contrast, remains both understudied and often overly teleological. Understudied, in that little is written about conservative lawyering, particularly conservative constitutional lawyering prior to the Reagan era. Overly teleological, in that extant accounts of conservative lawyering tend to view originalism, a conservative philosophy of constitutional interpretation, as inevitable, universally ascribed to, and hard-wired for success.  

This panel brings the complexity of political history to the legal history of conservatism. Focusing on the rise of originalism in the late twentieth century, the papers examine not only originalism’s roots, but also how it created winners and losers within the conservative movement, shaping the movement’s evolving political goals. In particular, the papers examine how originalism affected the New Right coalition.

Single issue organizations that opposed liberalization of abortion laws or the proliferation of union security agreements (contracts that required workers to join or support a union) were key New Right constituents. They pivotally connected their working class supporters to the rising right and pioneered the mass mobilization strategies that would define New Right conservatism. During the 1950s, 60s, and 70s, they also defined the leading edge of conservative constitutional lawyering. Leaders of both the anti-abortion and right-to-work movements were eclectic constitutionalists, drawing on everything from liberal precedents to neo-Thomist natural law.

As the first panel paper will show, originalism was the legal analog to fusionism in that it sought to knit together a movement with diverse and at times conflicting legal goals. This was the aspiration at least. The reality was far messier. The subsequent papers provide case studies of how the anti-abortion and right-to-work movements responded to and were affected by the rise of originalism as a conservative dogma. As the legal wing of political conservatism coalesced around originalism, anti-abortion activists tried to adapt while right-to-work advocates resisted with consequences for the law and politics of late-twentieth century conservatism.

This panel should have broad appeal, attracting not only legal historians, but also those interested in labor and women’s history, political history, late twentieth-century American history, and the history of conservatism.