Twenty-five years ago, then-Attorney General Edwin Meese launched a debate on “originalism” –the doctrine of constitutional interpretation that insists on the singular importance of enforcing the Constitution’s original meaning. Meese did this in a series of speeches, first to the American Bar Association, then to the Federalist Society (on November 15, 1985), and finally at Tulane Law School. On Wednesday, I attended a symposium on originalism held at the Supreme Court to commemorate Meese’s speeches.
Twenty-five years on, it may be difficult for some to realize that when Meese kicked off the debate, few judges and academics considered the words of the Constitution, and the intentions of its Framers, to be anything more than a jumping off point. The real project was to focus on what judges have said about the words, on history in general, on the interpreter’s own values and sense of things, and on whatever else might be helpful in making the “living constitution” speak to our times. That such an approach to the Constituion did not really constrain judges was considered a virtue.
This was the view Meese challenged in the three speeches. Here is what he said at the American Bar Association convention:
What, then, should a constitutional jurisprudence actually be? It should be a jurisprudence of Original Intention . . . . A jurisprudence aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection. This belief in a jurisprudence of original intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law.
To allow the courts to govern simply by what [they view] at the time as fair and decent is a scheme of government no longer popular; the idea of democracy has suffered. The permanence of the Constitution has been weakened. A constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense.
Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Courts to determine what that meaning was.
Meese’s speeches, as he intended, produced a spirited response from defenders of the “living constitution.” Most notably, Justice William Brennan fired back in a speech at Georgetown University. Brennan made some strong arguments about the difficulties inherent in ascertaining the “original intent” of Constitutional provisions – arguments that advanced the debate by causing originalists to reformulate their views of the criteria for determining the Constitution’s original meaning. But Brennan also said this:
If our free society is to endure, those who govern must recognize dignity and accept the enforcement of constitutional limitations on their power conceived by the Framers to be necessary to preserve that dignity and the air of freedom which is our proudest heritage. Such recognition will not come from a technical understanding of the organs of government or the new forms of wealth they administer. It requires something different, something deeper – a personal confrontation with the well-springs of our society. Solutions of constitutional questions from that perspective is the great challenge of the modern era.
But, as the distinguished federal appellate court judge Frank Easterbrook argued at this week’s symposium, the notion that constitutional adjudication should turn on judges’ personal confrontations with the wellsprings of our society is inconsistent with the justification for judicial review. That justification is that the Constitution lays down real, understandable rules that bind all branches of government, and that judges are capable of discerning those rules. The justification is not that there exists a breed of lawyer-philosophers whose personal intellectual reflections should trump the will of the people as expressed through their elected representatives.
There may be a plausible argument that the “dead hand” of the past should not constrain society’s quest for answers to problems not anticipated by the Framers. There may be a plausible argument that the past is so much a “foreign country” that the original meaning of old documents cannot reliably be determined. If so, however, there is no justification for permitting judges, in the name of a document written in the distant past, to overturn outcomes produced by the democratic processes. If the core question of constitutional interpretation is, what makes the most sense in light of today’s conditions, informed by a decent regard for general principles embodied in the Constitution, then the answers to this question worked out by the political branches (where the actors have sworn to uphold the Constitution) should be dispositive.
In responding to Justice Brennan’s 1985 speech, Robert Bork asked this question: unless the Constitution is law that, with the usual areas of ambiguity at the edges, nevertheless tolerably tells judges what to do and what not to do, what authorizes judges to set at naught the majority judgment of the representatives of the American people? No answer exists.
Originalism has evolved over the past 25 years. The focus has moved from the intentions of the Framers, to the intentions of those who ratified the Constitution, to the publicly understood meaning of the Constitution’s words. And a liberal (or progressive) originalism has emerged. It purports to apply originalist principles to support constitutional interpretations that produce results progressives like.
My general impression of progressive originalism is that its exponents have some plausible arguments to make when it comes to interpreting the Fourteenth Amendment, but often must resort to wild arguments when interpreting the original constitutional provisions.
In any case, the development of progressive originalism signals the extent to which the great debate Ed Meese kicked off 25 years ago has changed the terrain. It’s a true success story, and well worth commemorating.