Abstract
For decades, we have lived in an age of partisan jurisprudence, in which nearly every Republican has embraced originalism, and nearly every Democrat has rejected it. One can mark the start of that era in multiple places, but one good choice is November 11th, 1977. That day, in the pages of National Review, William F. Buckley previewed Government by Judiciary, Raoul Berger’s originalist critique of the Warren Court’s rights revolution. The review, entitled “Berger’s Big Book,” was highly complimentary. Berger’s rebuke of Warren Court activism was, Buckley thought, “devastating.” And he was not alone. Following the publication of Government by Judiciary, the conservative intellectuals who congregated around Buckley’s magazine made a sharp turn towards originalism. Attorney General Ed Meese ratified the shift in 1985 by adopting originalism as official government policy, a move that conservative interest groups and the emerging conservative legal movement quickly followed. Buoyed by their new political authority, those lawyers almost immediately transformed Berger’s originalist call for minimizing the role of the Court into a “new” originalism comfortable with what its critics call conservative judicial activism but what its advocates call “engagement.” As the New Right of the 1980s took Berger’s arguments in these unexpected directions, his work both marked and contributed to the emergence of originalism— and thus also of partisan jurisprudence. For many of the same reasons that Government by Judiciary marked the beginning of the conservative turn towards originalism, Jonathan Gienapp’s Against Constitutional Originalism may come to mark its end. Gienapp’s interdisciplinary expertise and outreach, the depth of his research, and his established position as a leader in his field echo the characteristics that made Berger’s work a turning point. And they have made Gienapp’s arguments impossible to ignore. With remarkable creativity and insight, he has succeeded better than any other historian in making unmistakably legible to lawyers and legal academics what he calls “conceptual rupture”: the gulf that separates contemporary lawyers and judges from the founding generation in their understanding of what the law is, where it is found, and who (or what) is responsible for its content. But if Against Constitutional Originalism comes to mark the end of the era of partisan jurisprudence—if it comes to be remembered as Gienapp’s Big Book—its place in the history of originalism may owe at least as much to the unexpected ways a rising political movement uses his arguments, just as it was for Government by Judiciary.
Repository Citation
Logan E. Sawyer III,
Gienapp's Big Book: Conceptual Rupture, Modernism, and the End of Originalism
, 36 Yale J.L. & Human. 462
(2026),
Available at: https://digitalcommons.law.uga.edu/fac_artchop/1798
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