Starting in the 1960s, jurists and scholars such as ex-New Deal liberal Raoul Berger, Supreme Court nominee Robert Bork, and Attorney General Edwin Meese charged the liberal activist justices of the Warren Court and the Burger Court with usurping legislative authority in violation of the intent and design of the Constitution. Sticking to Progressive “living constitutionalism,” liberal strategists pinned the “originalist” label on critics of judicial activism.
Even as it faced vigorous criticism, originalism was rightly recognized as a legal-theoretical problem worthy of philosophic and historical investigation. It was hard to deny, as constitutional scholar Richard Kay observed, that the issue of adherence to original intent was “vital in a political system where power is delegated and limited by a constitution.” In the view of historian Johnathan O'Neill, the doctrine's initial expositors such as Berger “made originalism impossible to ignore.”[1]
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