Original Intent and the Reagan Court: A New Approach to the Madisonian Dilemma?
Abstract
During the Reagan years, a demand was heard for a change in the way in which the Supreme Court decides cases. Answering the call for a "jurisprudence of original intention," scholars, politicians, judges, and justices debated the use of this constitutional theory. In a review of cases decided under the religion clauses of the First Amendment in the years between 1960 and 1988, the opinions of Reagan and non —Reagan appointees to the Supreme Court are analyzed to determine the use of references to original intent b y the justices. In particular, the problem raised b y Bork and labeled "the Madisonian dilemma" is examined to discover the relationship between references to original intent and opinions supporting or striking down legislative enactments. There is a slight difference in the number of references by the two groups of justices, but the difference is significant when it come to striking down legislative enactments.