For Intellectual-History-of-Originalism Buffs

Over at the Legal History Blog, Ken Kersch has two posts on the influence, or lack thereof, of William Crosskey, a law professor at the University of Chicago from 1935 to 1968 (post 1 and post 2). As Kersch points out, Crosskey was one of the first modern-day “originalists,” and he may (or may not) have influenced a young Robert Bork. I have Crosskey’s three volume Politics and the Constitution in the History of the United States on my bookshelf, and it’s always struck me as an interesting but very idiosyncratic work. I’ve been mildly curious about how influential Crosskey was in his day, and while Kersch doesn’t seem to reach a firm conclusion, Crosskey was clearly at least something of a player in constitutional debates in his time, but now has been almost completely forgotten.

A side point: originalism as we know it today really didn’t have intellectual legs until after World War II, and the version of originalism most widely accepted today, original meaning originalism, only gained traction about two decades ago. While various precursors of modern originalism were implicit, and very occasionally explicit, in some earlier Supreme Court opinions, if one insists on judging pre-1940s cases by whether they used modern originalist methodology, one will find that few if any cases were decided “correctly,” regardless of whether one ultimately approves of the outcome.

UPDATE: A useful, but not definitive, history of originalism can be found in Jonathan O’Neill’s Originalism in American Law and Politics.