A critical introduction to the originalism debate.

• Author: Calabresi, Steven G.

Since its founding in 1982, the Federalist Society and many of its members have promoted originalism as the correct philosophy to use in interpreting the Constitution. The originalism debate is of central importance to the Society's mission of promoting the rule of law, constitutionally limited government, and the separation of powers. We believe that ours should be a government of laws and not one of men or of judges.

Over the last quarter century, originalism has been the subject of much discussion. That debate, which had been proceeding quietly in American law schools, burst into noisy and public view in July 1985 with a speech by then-Attorney General Edwin Meese III to the American Bar Association that called for a jurisprudence of original intention. (1) Supreme Court Justice William J. Brennan, Jr., entered the fray that October with an address at Georgetown University, (2) to which Meese responded the next month in a speech before the Federalist Society Lawyers Division. (3) These speeches remain among the most enduring statements of the originalist creed and its critics.

The originalism debate continues to be of central importance to the Federalist Society's mission. The Society celebrated the twentieth anniversary of Attorney General Meese's speech to its Lawyers Division by making originalism the theme of its 2005 National Lawyers Division Convention. This Issue of the Harvard Journal of Law & Public Policy includes essays developed from several of the panel presentations during that retrospective symposium. The essays show that the issues Ed Meese raised more than twenty years ago are still hotly contested. President George W. Bush's recent appointments of Reagan Administration alumni John Roberts as Chief Justice of the United States and Samuel Alito as an Associate Justice have led many to hope that there may now be four Supreme Court Justices sympathetic to originalism. Given the likelihood of multiple Supreme Court vacancies in the next several years, the symposium essays that follow address the question of what judicial philosophy we should look for in selecting new members of the Supreme Court. The reader will find in these pages the best and most brilliant defenders and opponents of the originalist creed. We hope these essays will inform and shape the ongoing great debate over the merits of constitutional originalism. (4)

The remainder of this Introduction offers a critical guide to the ideas raised by originalism's seminal speeches as well as an opinionated review of the symposium essays that follow.

1. ATTORNEY GENERAL MEESE'S SPEECH TO THE ABA

   The first theme of Attorney General Ed Meese's 1985 speech to the American Bar Association (ABA) was the primacy of the rule of law. Meese began by noting that Americans "pride ourselves on having produced the greatest political wonder of the world--a government of laws and not of men." (5) This emphasis on the rule of law is central to originalism. Originalists believe that the written Constitution is the fundamental law and that it binds everyone--even Supreme Court Justices. Those Justices who abandon the original meaning of the text of the Constitution invariably end up substituting their own political philosophies for those of the Framers. Americans have to decide whether they want a government of laws or one of judges. Is the constitutional text going to bind the Supreme Court, or will the Justices in essence write and rewrite the text? Attorney General Meese came down squarely in favor of the idea "that the Constitution is a limitation on judicial power as well as executive and legislative" powers. (6)

   The argument for the rule of law is in part that the alternative is to give judges too much discretion, which would produce large swings in constitutional law that would be destabilizing and undemocratic. But there is much more to it than that. Those who convert the Constitution into a license for judges to make policy pervert a document that is supposed to limit the exercise of power into one that sanctions it. For this reason, Meese rightly said that "[a] constitution that is viewed as only what the judges say it is no longer is a constitution in the true sense." (7)

   This leads to a second theme of Meese's ABA speech, which was that the whole idea of constitutionally limited government itself is at stake in the originalism debate. If the original meaning of the text of the Constitution does not bind the Supreme Court, why should it bind the President or the Chairman of the Joint Chiefs of Staff? Once we abandon originalism in the Supreme Court, why not abandon it everywhere else as well? Such a decision is perverse because, as Meese pointed out, judges and Supreme Court Justices were supposed to be the "bulwarks of a limited constitution" (8) and not a French Revolution-style Committee of Public Safety that would legislate on the most sensitive issues of morality and religion by five-to-four votes without the limitations imposed on the legislature of bicameralism and presentment. (9) Indeed, the only reason judges have power to hold laws unconstitutional is because the Constitution is a higher law that binds legislative and executive officials and trumps unconstitutional actions those officials might take. (10) But if the Constitution does not bind the Justices, why should it bind the President or Congress? Accordingly, abandoning originalism means abandoning the rationale that Marbury v. Madison uses to justify judicial review. Without originalism there can be no constitutionally limited government and no judicial review.

   Moreover, if we abandon originalism in constitutional interpretation, then why not abandon it with respect to interpreting all other legal writings, including statutes, contracts, wills, deeds, and even old Supreme Court decisions? How many non-originalists would defend the idea that lower federal court judges are not bound by the original meaning of Justice Blackmun's opinion in Roe v. Wade, (11) but are free instead to give that opinion a moral reading in light of today's evolving standards of decency? Not many. Yet, if non-originalism is right when it comes to Supreme Court interpretation of the People's Constitution, then surely it is right when district judges are applying made-up Supreme Court case law. The correct answer on this, as on so many other questions, was long ago expressed by Justice Joseph Story when he said, "The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties." (12)

2. JUSTICE BRENNAN'S 1985 SPEECH AT GEORGETOWN UNIVERSITY

   The main theme of Justice William Brennan's speech in response to Attorney General Meese was what he called the "transformative purpose" of the constitutional text, (13) which he argued "embodies the aspiration to social justice, brotherhood, and human dignity that brought this country into being." (14) Justice Brennan argued that Meese's vision of reading the text in light of its original meaning was "little more than arrogance cloaked as humility," (15) because it was arrogant at our vantage point to claim that we could discern how the Framers would apply the moral-philosophic natural law principles he thought they wrote into the Constitution to late twentieth-century problems. Justice Brennan added that

   [w]e current Justices read the Constitution in the only way we can: as twentieth century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. (16) To say that the genius of a constitution lies in the fluidity of its meaning is a little bit like saying that the genius of the brakes on your car is the way they can be used for acceleration. The whole point of having a constitution or a bill of rights in the first place is to memorialize and entrench certain fundamental rights so that they can prevail in moments of passion when a crazed mob might want to cast them aside. To praise the Constitution primarily for its ability to be adapted to current problems and needs is thus to overlook the very reasons why we entrenched principles in the Constitution in the first place. More fundamentally, there are four specific errors permeating Justice Brennan's reasoning that deserve elaboration.

   The first error is that Justice Brennan totally cast aside the constitutional idea that it is feasible to have a system of intergenerational lawmaking, in which current generations agree to be bound by constitutional rules their great-grandfathers made so that they in turn can adopt new constitutional amendments that will bind their great-grandchildren. Justice Brennan denied that such intergenerational lawmaking was desirable, or indeed even feasible. (17) He believed the text of the Constitution was like the text of a poem, to which each generation of readers brings most of the meaning. (18) The fact of the matter is that there are many circumstances where it is essential that entrenched rules be in place in order for liberty to flourish. Who would go to the trouble of writing a controversial book if he could not know for sure that he would not be imprisoned for it in twenty years, in violation of the First Amendment? Who would work hard to start a business if he could not be certain that it would not be taken from him without just compensation, in violation of the Takings Clause? (19) Without the ability to entrench freedom of speech and of the press, or constitutional protections for private property rights, we would all have less freedom today. Each generation gives up something by agreeing to be bound by the rights its predecessors...