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The “Original" Fight of the Century

Posted By Julia Shaw On November 10, 2010 @ 2:00 pm In First Principles | Comments Disabled

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Twenty five years ago, President Reagan’s Attorney General Ed Meese sparked a national debate [2] about the meaning of the Constitution that set the stage for the revival of constitutionalism [3] in this country. On July 9, 1985, speaking before the American Bar Association [4], Meese issued a stinging critique of the Supreme Court’s recent decisions in the areas of federalism, criminal law, and religion in the public square.

The Court, he argued, rejects the idea that the Constitution has a fixed meaning, thereby leaving the justices free to concoct mock constitutional principles to support particular policy preferences.  The result is a smattering of contradictory opinions dubbed “a jurisprudence of idiosyncrasy.”

A few months later, Associate Supreme Court Justice William J. Brennan set out to correct General Meese in a speech before the Georgetown University Text and Teaching Symposium [5]. To speak of the meaning of the Constitution makes no sense since the Framers’ intentions and meaning cannot be ascertained, and even if they could, the Constitution’s eighteenth-century vision of society has long since become outdated. We can only ask of the Constitution “what do the words of the text mean for our time?”

Ultimately, therefore, the Constitution’s meaning is malleable: “ for the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current times and current needs.” To adhere to a jurisprudence of “original intentions,” then, is to pretend that we recreate an eighteenth-century society and “turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.” The implication was clear: the Constitution means whatever the Court says it means.

Attorney General Meese addressed Justice Brennan’s claim that the Constitution is an unknown entity in a speech before the Federalist Society [6] on November 15, 1985. Thanks to the pamphlets, letters, and well-documented debates and drafting records from the founding, the meaning of the Constitution is in fact knowable. The text does not purport to answer every policy question, but it “speaks volumes on how problems should be approached and by whom.” There is room for debate on the Constitution, but not to the extent that Brennan suggests. Brennan dismisses the actual text and history of the Constitution and reduces the document to a nebulous concept of human dignity. The problem with Brennan’s approach is that “navigation by such lodestars [of human dignity] has in the past given us questionable economics, governmental disorder, and racism—all in the guise of Constitutional Law.”

The Constitution is a well-crafted document meriting a particular interpretive approach: “where the language of the Constitution is specific, it must be obeyed. Where there is demonstrable consensus among the Founders and ratifiers as to a principle stated or implied in the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself.” The most interesting debates then, focus on the application of constitutional principles—not on whether these principles exist.

In another speech at Tulane University [7] on October 21, 1986, Meese further explained that the distinction between the Constitution and constitutional law is essential to maintaining our limited form of government. The text of the Constitution is the supreme law of the land. But, constitutional law is “what the Supreme Court says about the Constitution.” The Court’s decisions are binding on the parties involved, but they do not rise to the status of supreme law of the land “binding on all persons and parts of government henceforth and forevermore.” Since constitutional law is not synonymous with the Constitution, then the Supreme Court is not the only interpreter of the Constitution. The executive and the legislature also have duties to interpret and follow the Constitution.

Twenty five years ago, General Meese changed how America thought and spoke about the Constitution.  He did not invent originalism but reinvigorated the public discourse and gave conservatives an affirmative theory of how to think about the Constitution. In recognition of General Meese’s role in reviving discourse about the Constitution, Heritage is pleased to host a special panel and keynote today at the United States Supreme Court. Whether you will join Heritage at the Court to toast General Meese or read the conference papers afterwards, remember to “Hold on to the Constitution…and the Republic for which it stands.”


Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org

URL to article: http://blog.heritage.org/2010/11/10/the-%e2%80%9coriginal-fight-of-the-century/

URLs in this post:

[1] Image: http://www.foundry.org/wp-content/uploads/Constitution-9-17-10.jpg

[2] debate: http://www.fed-soc.org/resources/id.48/default.asp

[3] constitutionalism: http://www.heritage.org/Research/Reports/2006/05/How-to-Read-the-Constitution-Self-Government-and-the-Jurisprudence-of-Originalism

[4] speaking before the American Bar Association: http://www.fed-soc.org/resources/id.49/default.asp

[5] speech before the Georgetown University Text and Teaching Symposium: http://www.fed-soc.org/resources/id.50/default.asp

[6] speech before the Federalist Society: http://www.fed-soc.org/resources/id.52/default.asp

[7] speech at Tulane University: http://books.google.com/books?id=Z9zeun7qbN8C&pg=PA99&lpg=PA99&dq=Tulane+University+October+1986+meese&source=bl&ots=5lfwYNZQZX&sig=VDtfWa7-gyXZ9hKyWeInWeP3SRg&hl=en&ei=PrraTMmaKoO8lQfroNX4CA&sa=X&oi=book_result&ct=result&resnum=2&ved=0CBwQ6AEwAQ#v=onepage

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