Over the past 40 years, the philosophy of constitutional originalism has remade American law and remained front and center in American politics. From Attorney General Edwin Meese’s famous 1985 speech announcing a “jurisprudence of original intention” to guide the Reagan Department of Justice to the present, claims to originalist constitutional authority have been a constant of the conservative legal movement even if the application of that jurisprudence has not been. While a growing list of scholars has begun to analyze originalism’s complex political history, much of the history of originalism has still been written by originalists. It has been repeated to become its own “founding myth” to pair with the sacralized Founding of the US Constitution at the heart of American civil religion and popular originalist politics. This panel presents groundbreaking research into the origins and contingent development of constitutional originalism to augment the growing body of critical scholarship that challenges originalists’ self- narratives. These prehistories (or new early histories) of constitutional originalism each challenge particular elements of this dominant self-narrative.

Austin Steelman’s paper examines an originalist article in the Harvard Law Review in 1900. Its author, Arthur Machen Jr., a surprisingly sophisticated originalist before the theory had been named, engaged in a series of battles in constitutional politics that put his originalism into action. The first was challenging the validity of the Fifteenth Amendment and Black suffrage; the second was leading opposition to the Eighteenth Amendment and Prohibition; and the third was a fight against monetary elements of Franklin Roosevelt’s New Deal. This paper challenges the standard chronology of the emergence of constitutional originalism and shows the radical conservative political preferences embedded in the theory from its earliest days. Josh Aiken’s paper challenges originalist claims to interpretive fixity with respect to the Second Amendment and gun rights. From the 1970s through the early 2000s, conservative law-and-order politicians emphasized not just an individual constitutional right to bear arms but simultaneously a racialized legal regime that could disarm those deemed “armed and dangerous.” This “firearms carceralism” created a complex web of laws and interpretations that hid the racial injustice at the root of this bifurcated application of the Second Amendment. Logan Sawyer’s paper challenges the provenance of Robert Bork’s influential originalist article Neutral Principles and Some First Amendment Problems. The article, this paper explains, was not a sui generis moment of conservative genius. Rather, it fit into a growing interest in historicism within the legal academy that included liberal and leftist scholars. The article’s success and rise to legitimacy in the legal academy was thus due to broader trends in the philosophy of legal thought rather than its unique provocation. Finally, Robert Gelles’s paper presents a new history of “history” in constitutional originalism. While contemporary originalism claims its legitimacy based on its historical interpretations, this paper uncovers a different “grammatical” mode of textualist originalism that dominated the jurisprudence’s early years. Instead, originalists developed this reliance on history in response to their critics rather than at the movement’s conception.