One often finds more radical views among defenders of tradition these days than the average member of the faculty: who is really defending the status quo?
I worked at the Department of Justice during the tenure of Attorney General Edwin Meese and last Friday I had the pleasure of attending a dinner is his honor. My friend and colleague, Steve Calabresi, gave a wonderful speech, suggesting that General Meese was the most consequential of all Attorneys General. While I have not made a study of the over seventy people who have held the office, I heartily agree with Steve that General Meese left an extraordinary legacy for law and liberty that is worth recalling.
It is hard to remember just how problematic was the legal culture when General Meese took office. Many people accused the Warren Court of numerous infidelities to the Constitution, but the Burger Court may well have committed grosser blunders. It issued the opinion in Roe v. Wade, a decision singularly untethered to the Constitution. Politicians had previously criticized the Court, but more as a matter of political expediency than as a matter of legal principle. Richard Nixon, for instance, had called for “strict construction,” which was essentially code for curbing the rights the Warren Court had minted for the criminally accused.
General Meese, by contrast, did not simply suggest that some individual decisions were wrong, but provided a theory of why they were wrong. In a series of speeches, he argued that many recent decisions did not follow the original meaning of the Constitution and it was only that meaning that justified judges invalidating the laws of the democratic branches. He elevated the debate to one of principle, rather than politics, and to the question of what secures an enduring constitutional republic, rather than what appears good for day-to-day policy.
By questioning the very foundation of left-liberal political culture, Meese drew considerable flack. New York Times columnist Anthony Lewis called one of the (then) Attorney General’s speeches “the most radical document to come from an administration legal officer in generations.” Justice William Brennan dismissed originalism as “arrogance cloaked in humility.”
But even if Meese’s invocation of principle provoked a sharp counter-reaction he put originalism on a course for steady progress. Meese was the prime mover in President Reagan’s decision to appoint the indomitable Antonin Scalia to the Court, assuring that originalism would became a force in the Court’s jurisprudence. A focus on principle naturally attracted conservative legal intellectuals to the Department of Justice. Many then made their way into the academy, refining and applying originalism to a host of issues.
Almost thirty years later, originalism is still on the rise. It was the jurisprudential inflection point behind the restoration of the Second Amendment to its place as an individual liberty. More generally, the Court appeals to the original meaning far more often than in the past. In the academy, originalism has become a vibrant area of constitutional scholarship and has gathered adherents across the ideological spectrum.
For all of this and more, we toasted General Meese as a man who did so much to restore the rule of law and a Constitution that was a charter of tested rather than idiosyncratic liberties. I hope readers of this blog may consider their own toasts as well. We owe General Meese a very substantial debt of gratitude.