Diachronic Constitutionalism: A Remedy for the Court's Originalist Fixation‪.‬

The intellectual vanguard of the 1980s movement for originalism marched under the banner of judicial restraint. (1) The Supreme Court's power and willingness to shape modern social policy grew radically between the New Deal era of the 1930s and the Warren-Court era of the 1960s, (2) provoking a backlash by the closing decades of the twentieth century. In the 1980s, judges, legal scholars, and ordinary citizens began complaining more frequently and in greater numbers that politically motivated judicial activism was "unraveling ... the theoretical underpinnings of constitutional law" and making Court decisions increasingly unstable and unpredictable. (3) The originalist solution to the problem of an out-of-control judiciary was for judges to limit their application of constitutional provisions to the original meaning of the law contained in the Constitution's written text. (4) Judge Robert Bork, one of originalism's most outspoken defenders at the time, neatly summarized his creed as follows: "Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win." (5) If they are the latter, as Bork feared they had become, then the Court's constitutional doctrine would be as fickle as the American electorate. (6) Originalism was to be the anchor that prevented the Court from subverting its own constitutional authority.