June 6, 2005
By Edwin Meese III
Today's battles over judges have too often broken down along
party lines. Democrats sought to filibuster judicial nominees.
Republicans worked to guarantee nominees an up-or-down vote. Even
the uneasy "truce" achieved last month was the result of politics,
The partisan division is unfortunate, because the judiciary is
no place to be playing politics. "Judges shouldn't be liberal or
conservative, since the Constitution isn't liberal or
conservative," as President Ronald Reagan once observed.
Taking the politics out of the judiciary is a key tenet behind
the concept of constitutional originalism. That's the idea that
judges should issue rulings based on the original understanding of
the authors and ratifiers of the Constitution and the Bill of
Rights -- rather than on outcomes that reflect the judges' personal
biases or policy preferences.
In 1985, just a few months into my tenure as attorney general, I
decided to open a national discussion about this idea. In a speech
before the American Bar Association, I urged that the country ought
to move back toward originalism. The speech also noted that in one
of the day's leading law school casebooks on constitutional law,
the Constitution itself wasn't set out until Appendix H.
Sometimes it's easy to tell that you've hit a nerve. Within
weeks, I'd received a letter from the author of the casebook,
huffing that in the next edition of his book, the Constitution
would be moved up to Appendix A. That was a start, anyway.
In promoting originalism, I was simply following President
Reagan's wishes. In one 1988 speech, he asked judges to put "an end
to the fanciful readings of the Constitution that produce such
decisions as Roe v. Wade."
That 1973 decision was certainly an extreme example of judicial
revision of our Constitution. The judges wanted to reach a
particular political outcome, so they simply pretended to ground
their decision in our founding document. They used a
nonconstitutional "right to privacy" to create a "right" to
abortion on demand.
But this wasn't the first time Reagan advocated originalism.
When he took office in 1967 as governor of California, Reagan
challenged his staff to find him judges who would adhere to the law
as it was written.
Sadly, too many judges had lost sight of that simple idea. In
1985, I noted that the Supreme Court's decisions seemed to be "more
policy choices than articulations of long-term constitutional
principles." My idea was so controversial at the time that
then-Supreme Court Justice William Brennan said it was "little more
than arrogance cloaked as humility."
How times have changed.
In the past 20 years, the popularity of originalism has surged.
Not long ago, noted liberal law professor Ronald Dworkin announced,
"we're all originalists now." That's certainly true on one level.
Originalism is so successful that everyone who wants to talk about
judicial policy needs to use the word, in much the same way that
communist East Germany had to call itself the "German Democratic
Republic." Originalism, like democracy, is seen by almost everyone
-- even its opponents -- as the only way forward.
There really isn't an academic alternative to originalism. But
there are still plenty of legal scholars -- including some on the
Supreme Court -- who press for the idea of a "living Constitution,"
one that changes with the times, and ends up meaning only what
today's reader wants it to mean.
As a recent example, five justices decided it would be prudent
to allow the government to regulate the funding of political
campaigns, so they ignored the clear intent and actual wording of
the First Amendment and upheld the McCain-Feingold law.
That's why there's a difference between the Constitution and
constitutional law: As originalists know, the former is constant,
while the latter can (and in the case of McCain-Feingold,
eventually will) be overturned.
Originalists believe in a living Constitution, of course -- we
certainly wouldn't argue that the work of the Framers is dead. But
we realize that if the Constitution means nothing more than what
each new generation would prefer it to mean, it's already dead.
The way originalists read the Constitution, through the eyes of
its authors, it remains very much alive, and very much relevant to
today's political and legal discussions.
The move toward originalism is a marathon, not a sprint. Law
schools, practicing attorneys and even judges are slowly realizing
the importance of grounding their decisions on the bedrock of
original understanding instead of the shifting sands of public or
This is a debate that will go on, probably for decades. But, if
we are to be faithful to the Constitution, it's a debate that must
end where it began -- with the words of the Framers emerging
Edwin Meese III is a
fellow at The Heritage Foundation and holds its Ronald Reagan Chair
in Public Policy. He served as attorney general under President
Reagan. This commentary was adapted exclusively for the Trib from
remarks Mr. Meese delivered last month in Washington.
Distributed nationally on the Knight-Ridder Tribune Wire
Today's battles over judges have too often broken down along party lines. Democrats sought to filibuster judicial nominees. Republicans worked to guarantee nominees an up-or-down vote. Even the uneasy "truce" achieved last month was the result of politics, not principle.
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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