Original Intent

Commemorating the Start of a Great Debate - Paul Mirengoff

Twenty-five years ago, then-Attorney General Edwin Meese launched a debate on "originalism" --the doctrine of constitutional interpretation that insists on the singular importance of enforcing the Constitution's original meaning. Meese did this in a series of speeches, first to the American Bar Association, then to the Federalist Society (on November 15, 1985), and finally at Tulane Law School. On Wednesday, I attended a symposium on originalism held at the Supreme Court to commemorate Meese's speeches.

Twenty-five years on, it may be difficult for some to realize that when Meese kicked off the debate, few judges and academics considered the words of the Constitution, and the intentions of its Framers, to be anything more than a jumping off point. The real project was to focus on what judges have said about the words, on history in general, on the interpreter's own values and sense of things, and on whatever else might be helpful in making the "living constitution" speak to our times. That such an approach to the Constituion did not really constrain judges was considered a virtue.

This was the view Meese challenged in the three speeches. Here is what he said at the American Bar Association convention:

What, then, should a constitutional jurisprudence actually be? It should be a jurisprudence of Original Intention . . . . A jurisprudence aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection. This belief in a jurisprudence of original intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law.

To allow the courts to govern simply by what [they view] at the time as fair and decent is a scheme of government no longer popular; the idea of democracy has suffered. The permanence of the Constitution has been weakened. A constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense.

Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Courts to determine what that meaning was.