Three decades ago, then-Attorney General Edwin Meese III initiated a spirited national debate about the proper application of our most important governing document—the U.S. Constitution. His goal was to persuade judges, even Supreme Court judges, to agree they should respect the text of the Constitution and the intent of the Founders who wrote it.
Meese, the Ronald Reagan distinguished fellow emeritus at The Heritage Foundation, began by targeting the most visible violator of the principle of originalism.
In a July 1985 speech to the American Bar Association, Meese declared that the Supreme Court had engaged in too much policymaking in its latest term and showed too little “deference to what the Constitution—its text and intonation—may demand.”
It is fair to conclude, he said, that far too many of the court’s opinions were “more policy choices than articulations of long-term constitutional principles.” Instead, Meese said, the high court should employ a “Jurisprudence of Original Intention”—a return to the intent of the authors of the Constitution and the Bill of Rights.
In challenging the Supreme Court, legal scholar Bruce Fein pointed out, Meese was the first attorney general since Robert Jackson under President Franklin D. Roosevelt to question how the Constitution ought to be interpreted and to recognize there is a role for the executive branch in “shaping the form of jurisprudence.”
The Department of Justice under Meese kept up the pressure by filing a “friend of the court” brief with the Supreme Court asking that the 1973 Roe v. Wade decision legalizing abortion on demand be overturned. And in a speech to the Knights of Columbus, the largest Catholic lay group in America, Meese argued that it “begs credulity” that American values cannot be “religious in nature.”
By removing from public education and discourse all references to traditional religion and substituting the morality of the cult of self, he warned, “we run the risk of subordinating all other religions to a new secular religion which is a far cry from the traditional values … which underlie the American people.”
>>> On Wednesday, Oct. 5, at noon, The Heritage Foundation will host an event, “The Originalism Revolution Turns 30: Evaluating Its Impact and Future Influence on the Law,” featuring Meese. RSVP or watch live here.
The reactions of the proponents of an ever evolving “living constitution” ranged from the incredulous to the furious. They protested that the Meese Justice Department was engaging in a “badly disguised attempt” to limit the constitutional rights of minorities.
They hailed Supreme Court Associate Justice William J. Brennan Jr. when he described the constitutional views endorsed by Meese as “little more than arrogance cloaked as humility.” Defending his judicial activism, Brennan stressed the need to adapt the Constitution “to cope with current problems and current needs.”
Meese calmly responded that he welcomed Brennan to the widening legal debate about the Constitution. “There is a sense that a sea change is upon us,” commented A. E. Dick Howard, a professor of law at the University of Virginia, and “Mr. Meese is willing to lead the charge.”
Indeed he was. The attorney general reiterated the theme of “original intention” in a speech to the Federalist Society, saying that interpreting the Constitution’s “spirit” instead of its words invited the danger of “seeing the Constitution as an empty vessel into which each generation may pour its passion and prejudice.” He charged that the current judicial activism was not faithful to the written Constitution.
“An activist jurisprudence, one which anchors the Constitution only in the consciences of jurists,” he added, “is a chameleon jurisprudence, changing color and form in each era.” A true approach, he said, “must respect the Constitution in all its parts and be faithful to the Constitution in its entirety.”
Meese recalled the warning of Supreme Court Justice Felix Frankfurter about a politicization of the court:
There is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The framers carefully and with deliberate foresight refused to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be made to an informed, civically militant electorate.
Meese shocked the left again with a Tulane University speech in which he stated that a Supreme Court decision “does not establish ‘a supreme law of the land’ that is binding on all persons and parts of the government, henceforth and forever more.” The attorney general was on firm ground. Abraham Lincoln had led a great war to overturn the court’s decision in Dred Scott, which said Congress could not stop slavery in the territories.
Meese was making a critical point. There is a difference between constitutional law—the rulings of the court—and the Constitution. If you don’t like something in the Constitution, your recourse is an amendment. But if you don’t like a court ruling, The Wall Street Journal pointed out, “you can try to get the justices to reverse themselves.” And the high court had overruled 230 of its decisions in the first 200 years of its existence.
As we know, the officials of each branch, from the president to the attorney general, take an oath to enforce the Constitution. The goal, explained Meese, is “to maintain the important function of judicial review while at the same time upholding the right of the people to govern themselves through the democratic branches of government.”
In other words, Congress, the president, and the states are free to encourage the Supreme Court to reconsider its opinions as in, for example, Roe v. Wade.
The American Civil Liberties Union immediately castigated Meese, calling his address “an invitation to lawlessness.” The head of the American Bar Association harrumphed that acknowledging the power of other branches to interpret the Constitution “shakes the foundation of the system.” He had apparently forgotten what Thomas Jefferson wrote: The Constitution no more gives judges the “right to decide for the executive … than the executive to decide for them.”
Meese was not a revolutionary but an apostle of ordered liberty—the prudential blending of individual liberty and political order under the Constitution and through a Jurisprudence of Original Intention.
The Great Debate that he started three decades ago placed the idea of judicial originalism at the center of American jurisprudence. Let us now praise the man who initiated that debate and helped preserve and protect our liberties and those of generations to come.
