Logan Everett Sawyer III, Originalism and the Path to Partisan Jurisprudence: The Guidelines on Constitutional Litigation inside the Reagan Administration, 3 J. Am. Con. Hist. 337 (2025).
For more than three decades, the public debate over the Constitution has been more than political. It has been partisan. Since the 1980s, nearly every Republican has embraced originalism, and nearly every Democrat has rejected it. This article uncovers the dynamics that fused originalism with the GOP by providing an insider’s view of the creation of the Guidelines on Constitutional Litigation. The Guidelines, published by President Reagan’s Department of Justice in 1988, have been recognized as a key expression of the goals of a conservative movement. They claimed that their directions to DOJ litigators were derived from a commitment to originalist interpretation. Documents collected at the National Archives and elsewhere, however, reveal that their content—and thus the implications of Reagan Administration originalism more broadly—were instead defined by a deeply contested, partisan legal-policy agenda. Indeed, while theoretical and historical concerns were occasionally present, the documentary record shows DOJ leadership discussing their political and partisan concerns with surprising frankness. That same record also shows the extent to which Meese’s lawyers turned to originalism to help them control the government. Frustrated by what they saw as recalcitrant bureaucrats and lukewarm political appointees both within DOJ and elsewhere, they saw the originalism-infused Guidelines as a tool to advance the Reagan Revolution not just in the courts, but in the executive branch as well.
The Guidelines failed to achieve the immediate goals that gave birth to them. After years of effort, the Attorney General declined to issue them as binding guidance for the Department. But the story of the Guidelines—of their creation, their development, and even their failure—shows how and why lawyers in the Reagan administration first adopted then transformed originalism. Their efforts demonstrated that any unattractively radical implications of originalism could be smoothed over to create an approach to constitutional interpretation that effectively served the broader Reagan coalition. And they made clear how well the theory’s claims to free the law from politics could help advance highly contested, partisan policy goals. In the end, it was their efforts—not any necessary connection between originalism and an ideologically conservative Republican Party—that created the de-fining characteristic of over three decades of constitutional politics.
