Robert W. Gordon things: that their Constitution forbade the national government to issue paper money or to build a national road system; that its protections for “freedomof speech” did not prevent governments fromcriminal prosecutions of their political enemies for libels against officials; that the Constitutional protection of “free exercise of religion” was compatible with state legislation of civic disabilities for Catholics and Jews; that property in slaves and even the slave trade were to be protected against emancipators; that the President must conduct foreign policy, especially wars and other hostile engagements, under the close supervision of Congress. We could not restore that world of 18th century political culture if we wanted to - and nobodv, including the New Right, seriously wants to. The more dynamic readings of history have the advantage over originålismof giving us a method - however mythic and simple-minded that method may sometimes be - of connecting our present to our past in such a way as to argue that some story of progress or intervening experience has made pieces of the original understanding irrelevant, dead, anachronistic, obsolete. Thus the NewRight jurists’ commitments to originalist method could only be inconstant and fitful, and so indeed it has turned out. They use history when it suits their purposes, distort it or abandon it when it doesn’t - in short, their uses of history are like those of any other lawyers — forensic and highly selective. It turns out that it is only quite recent history, not the nation’s entire history, that the New Right wants to undo. Originalism is less a method of giving content to basic legal norms than of finding a standpoint fromwhich to criticize recent deviations — especially the Rights Revolution of the 1960s and 70s and its invention of new rights to liberty and property and privacy. Examined more closely, the New Right’s historical arguments fit squarely into the conventional narratives of American legalism. They begin with the claim that society has declined, but end up promising redemption: the story of legal liberty has only been sidetracked, and with proper attention can be rerouted back to the main line. Chiefly, the attempt is to revive the condition not of late eighteenth century law but what they imagine to have been late nineteenth century, or classical liberal legalism. Most of the New Right intellectuals admire that regime for what they believe to have been its devotion to laissez-faire capitalism and the minimal state.Some of the very same intellectuals admire the authoritarian social control of that period, by both state and civil society, of deviant behavior. Many legal intellectuals of the New Right have sought faithfully to revive almost all the main features of (what they imagine to have been)-' the ClassiSee e.g. Bernard Siegan, Economic Liberties andthe Constitution (Chicago; Univ. of Chicago Press, 1980). This qualififving phrase is needed because late nincteenth-centurv private-law doctrine is often badlv misdescribed bv both its admirers and detractors. It was bv no means so consistentK’ favborable to the interests of business enterprises, or so strict and formal in contract enforcement, as it is often pictured. 192
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