AN “ORIGINALIST” VIEW OF THE CONSTITUTION
Attorney General Meese, however, asserted that the 1925 Gitlow case was wrongly decided. He declared that Supreme Court decisions since 1925 which applied federal constitutional power to prevent state actions regulating speech or press or religious observances rested on “shaky” and “suspect” ground. In both a 1985 speech and a 1989 review of Leonard W. Levy’s book, Original Intent and the Framers’ Constitution, Meese called for a return to what he termed “the jurisprudence of original intention.” In Meese’s 1985 speech to the American Bar Association, he declared:15
Most Americans forget that it was not until 1925, in Gitlow v. New York, that any provision of the Bill of Rights was applied to the states. Nor was it until 1947 that the Establishment Clause [on religion] was made applicable to the states through the Fourteenth Amendment. This is striking, because the Bill of Rights, as debated, created and ratified was designed to apply only to the national government . . . .
One interpretation of this would be to roll back the clock so that the Bill of Rights would shield Americans only against repressiveness from federal government agencies, not from the states.16
Some months after Meese’s 1985 speech, Supreme Court Justice William J. Brennan Jr. responded to the attorney general’s “original intent” incantations. Justice Brennan did not name the administration of President Ronald W. Reagan, nor did he mention Mr. Meese by name, but the targets of his speech were unmistakable. Justice Brennan said:17
Because judicial power resides in the authority to give meaning to the Constitution, the debate is really about how to read the text . . .
There are those who find legitimacy in what they call “the intentions of the Framers.” In its more doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention. . . .
Justice Brennan said that approach “feigns self-effacing deference” to the Framers’ judgments, but that it was “little more than arrogance cloaked as humility.” “ It is arrogant,” Justice Brennan declared, 18
. . . to pretend that from our vantage point we can gauge accurately the intent of the Framers on applications of principle to specific, contemporary questions. Apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive.
Attorney General Meese evidently borrowed some of his original intent philosophizing from Judge Robert H. Bork, who was nominated to the Supreme Court by President Reagan but failed to pass Senate confirmation. Meese complained that the “originalists” had been misinterpreted, that their approach to interpretation would not freeze the meaning of the Constitution in 1789. He argued that changed circumstances could be taken into account, and then quoted Court of Appeals Judge Robert H. Bork:19
Because we cannot know how the Framers would vote on specific cases today, in a very different world from the one they knew, no intentionalist of any sophistication employs the narrow version . . . [The notion that judges may apply a constitutional provision only to circumstances contemplated by the Framers.]
Attorney General Meese’s view was that decisions based on the Constitution should “reflect the text of the document.” When that is insufficient, requiring further interpretation, the Court should “reflect . . . the most plausible meaning of the words of the Constitution to the society that adopted it.” Meese added,20
To find such meaning, courts should use the same techniques employed in interpreting a statute, a contract, a will or other legal documents. And therefore, when looking at the origins of the Constitution, it is logical that attention should be given to what the most knowledgeable people of the time understood these words to mean.
First, a comment on the preceding words from former Attorney General Meese. First, his emphasis on “accepted rules of legal construction” (as with a statute, contract or will) might be technically correct, but it rings badly. Compare his view to the soaring words of Chief Justice John Marshall in Marbury v. Madison (1803): “[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle . . . that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”21 Chief Justice Marshall used those words in declaring powers for the Supreme Court of the United States which are not explicit in the Constitution, but which make it possible for an independent Judiciary to be an effective counterbalance against the Executive and Legislative branches of government. In that watershed 1803 decision, Chief Justice Marshall enunciated the principle of judicial review of acts of the Congress and actions of the federal Executive branch. Judicial review was not written into the Constitution, but—despite questions about its legitimacy—it has been accepted by acquiescence since quite early in the 19th Century and long has been ingrained in American law. Judicial review enables the Supreme Court of the United States to declare acts of Congress and actions of the Executive Branch unconstitutional. Judicial review, in other words, is a Supreme Court-created check and balance on the other two government branches.
15 Attorney General Edwin Meese, III, Speech Before the American Bar Association, Washington, D.C., July 9, 1985, reprinted in Steven G. Calabresi, ed., Originalism: A Quarter-Century of Debate (Washington, DC: Regnery Publishing, Inc, 2007), at p. 52.
16 Edwin Meese III, “What Did the Constitution’s Framers Really Want?” Review of Leonard W. Levy’s Original Intent and the Framer’s Constitution,” in the Wall Street Journal, February 12, 1989, p. A12.
17 Excerpts of Justice Brennan’s speech, quoted in The New York Times, October 13, 1985, p. 20.
18 Ibid. Note that Supreme Court Justices rarely choose to speak with specificity on issues, trying to remain above political frays. Note, however, that Mr. Meese’s remarks also attracted an acid reply from Justice John Paul Stevens. Stevens said—in reference to the origins of the Fourteenth Amendment (ratified in 1868) –that the attorney general ignored “the profound importance of the Civil War amendments.”
19 Edwin Meese III, “What Did the Constitution’s Framers Really Want?”. Wall Street Journal, Feb. 12, 1989, p. A12.
21 Marbury v. Madison,, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), excerpted in