June 6, 2005

June 6, 2005 | Commentary on Legal Issues

The Case for 'Originalism'

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.

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 personal opinion.

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 victorious.

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.

About the Author

Edwin Meese III Ronald Reagan Distinguished Fellow Emeritus
Edwin Meese III Center for Legal and Judicial Studies

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