Robert W. Gordon In the meantime another set of challenges was brewing on the Right - one that was to be much more influential, since the Reagan victory in 1980 suddenly swept into the federal executive and judiciary a cadre of legal intellectuals: libertarians and law-and-economics scholars from the University of Chicago and various conservative think- tanks. The lawyers of the Reagan Revolutioncame to power determined to do to the entrenched Progressive histories what the Progressives had done to the Classics: to substitute a newstory, with different heroic agents and a different ending, into the standard narrative structure of the history of liberal society. Their influence has been deep and pervasive - and has posed the most serious challenge yet to the long reign of Progressive orthodoxy. At first glance conservative legal thought seems to reject the narrative of progress altogether: it has a decidedly nostalgic impulse, to reproach modernist culture by reaching back into an earlier golden age or set of founding principles. Yet this is usually followed, in the optimistic American vein, by an account of how, despite backsliding, with repentance and discipline, the principles may be restored in an even better form. So the Reagan-era lawyers made it out that, with effort, we could be ceaselessly moved forward into our virtuous past of intact families, shared and rigorously enforced moral and religious convictions, and the unregulated pursuit of acquisition.*^ To be sure the historical view with which New Right lawvers are mostlv identified is not a dynamic one at all but the static mode of frozen time: the various “originalist” theories of Constitutional Interpretation - in their extreme forms, the views that the exclusive determinants of the meanings of Constitutional texts should be the intentions of those historical persons who framed and ratified them. Judging by gross volume of paper produced, originalist exegesis is where President Reagan’s lawyers invested most of the resources they had to spend on history. Reagan’s Attorney-General declared this hermeneutics to be official goverr-ment policy; and the current Supreme Court’s preoccupation with historical origins, like the English Stuart Parliament’s, has given employment to many antiquarians. Not all prominent conservative jurists since the 1980s have been originalists - Judge Richard Posner and Solicitor General Charles Fried, for example, remained immune; but it had brilliant and influential promoters in two Supreme Court justices - Chief Justice WilliamRehnquist and Justice Antonin Scalia - and in another judge whose appointment to the Court failed to be confirmed — Robert Bork. These judges’ commitment to originalism however owes little to reverence towards the Founders or their age or to tradition. Though Bork likes to invoke the name of Edmund Burke, and Scalia the binding force of “tradition”, neither has any trace of the common-law mind, the respect for tiny particulars of customs crystallizing slowly over time, the reverence for The account that best captures this element in President Reagan’s appeal is Garry Wills, Reagan’s America: Innocents at Home (NewYork; Doubleday, 1987). 190
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