Thursday, July 5, 2012

Ziegler on the Antiabortion Origins of Grassroots Originalism

Mary Ziegler, St. Louis University School of Law, has posted Grassroots Originalism: Rethinking the Politics of Judicial Philosophy, which is forthcoming in the University of Louisville Law Review. Here is the abstract::
How has originalism become so politically successful? Whether its appeal is intrinsic or depends on the political outcomes it promises, leading studies a gree that the popularization of originalism came from the top down: elite actors persuaded grassroots activists to endorse originalism. By focusing on arguments about the backlash against Roe v. Wade, this Article argues that current studies of originalism as a political practice are fundamentally incomplete. First-generation originalists like Antonin Scalia, Robert Bork, and Lino Graglia defend originalism in part by pointing to the negative political and social consequences of any alternative approach. Roe has been the most powerful example used in consequentialist arguments for originalism. By failing to adhere exclusively to constitutional text or history, as Scalia has argued, the Roe Court forced lay people to question the Court’s legitimacy and, in so doing, helped to create the antiabortion movement.

However, these consequentialist contentions of originalism and against Roe emerged not in the academy or in the courts but within the grassroots Right. In 1980-81, antiabortion activists began arguing that Roe should be overruled because of the consequences of the Court’s activism: the creation of the antiabortion movement, the polarization of debate, and the effective preclusion of any meaningful legislative compromise. These activists were not simply attracted to originalism because of its inherent worth or because of the results it produced. Instead, members of the grassroots Right pioneered justifications that later featured in the work of first-generation originalist scholars. As the Article shows, the politics of originalism have been conducted from the bottom up as well as from the top down.

There is a good deal at stake in understanding the role of the grassroots Right in creating consequence-based justifications for originalism. First, by assuming that academics, politicians, and judges have dominated the politics of originalism, we have misunderstood important popular arguments for originalism or judicial restraint. Grassroots claims about originalism have a distinctive language, and their purpose and rhetoric differ considerably from the arguments articulated by politicians and professors. A second implication concerns the legal academy. The materials assembled here suggest that the battle for the future of constitutional interpretation will not be won by whoever has the best theory. The politics of judicial philosophy have involved an unpredictable and highly contingent give-and-take between grassroots activists and the political and judicial elites. This will likely to continue to be the case in the future.