Monday, July 18, 2011

Crosskey and Modern Originalism
Mike Rappaport

Ken Kersch has some interesting posts on William Crosskey and his effects on modern originalism. See here and here.

Crosskey is an extremely interesting scholar.  For what it is worth, I believe his methodology represented a form of modern original public meaning analysis -- employed far before anyone else usually associated with modern originalism was engaged in the enterprise.  The world that he constructed reads like the world of a mad genius -- more so today, given how much he anticipated -- it is elaborate, involves an incredible amount of work, and is totally divorced from what else was going on at the time.

That said, my take on  Crosskey is that he was extremely result oriented.  He started out wanting to reach the conclusion that the New Deal was right and reached that conclusion, no matter what stood in the way.

I first came upon Crosskey in law school while writing my note on the Contract Clause.  I was further exposed to Crosskey, though, in the place where I really learned law -- the Meese Justice Department.  John Harrison knew Crosskey very well and we (and others) often discussed him.

Which brings me to Crosskey's influence on modern originalism.  Kersch suggests that Crosskey may have influenced Robert Bork at the University of Chicago, and it may very well be. But Crosskey has another influence through the Department of Justice.

It is not always recognized how much of modern originalism has roots in the Meese Justice Department.  Not only in the speeches Meese gave, but in the young lawyers who worked there and later became originalist scholars.  Restricting myself to those who have served in the academy, these scholars include (and I am surely missing some important people) Steve Calabresi, Brad Clark, John Harrison, Doug Kmiec, Gary Lawson, Nelson Lund, John Manning, Michael McConnell, John McGinnis, Mike Paulsen, and myself.  That is a pretty big chunk of modern originalist scholars. And many, if not all, of these people were exposed to Crosskey at Justice.  Thus, Crosskey may have had an influence on modern originalism through this alternative avenue.

Crossposted at the Originalism Blog

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Mike Rappaport


Unfortunate. Zips in the wire.

I once had hope. Scalia, of whom I am a fan, finds it necessary to respect bad precedent more than original intent. Perhaps that is a sign that this is all beyond reform.

America is at that awkward stage. It’s too late to work within the system and too soon to shoot the bastards-
Claire Wolf

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