The start of a great debate, Part Two

Today is the 25th anniversary of then-Attorney General Edwin Meese’s speech to the Federalist Society on “originalism” — the doctrine of constitutional interpretation that insists on the singular importance of enforcing the Constitution’s original meaning. The speech was the second of three through which Meese that kicked off a debate that persists to this day.
A “great debate” requires formidable participants on both sides. Thus, as I noted here, Justice William Brennan deserves credit for promoting the debate on originalism with a speech in defense of “the living Constitution” that he delivered shortly after Meese’s opening salvo.
Seth Stern, co-author with Stephen Wermiel of a recent biography of Brennan, directs my attention to a piece he and Wermiel wrote about Brennan’s speech. According to Stern and Wermiel, Brennan did not intend his speech to be a rebuttal to Meese. In fact, the Justice’s clerks had actually started working on his talk before Meese spoke out, and much of what Brennan said was recycled from earlier speeches.
Stern and Wermiel acknowledge, however, that Brennan’s speech contained some “spicy one-liners — such as the one accusing advocates of originalism of practicing a ‘facile historicism'” — that were not a restatement of previously stated views. And they agree that “most people who subsequently read [Brennan’s] speech understandably interpreted it as a counter-offensive against Meese as they heard the court’s leading liberal dismiss attempts to ‘find legitimacy in fidelity’ to the intentions of the framers as ‘little more than arrogance cloaked as humility.'”
Stern and Wermiel also provide a useful perspective on the shape the debate has taken in recent years, particularly from the “progressive” point of view. I thank Mr. Stern for calling his post to my attention.


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