In October 1986, at Tulane University, Attorney General Edwin Meese III delivered a talk that would set the stage for a revolution in Constitutional interpretation.
Titled “The Law of the Constitution,” the 45-minute talk challenged decades of conventional wisdom and sparked a surge of interest in a theory of judicial interpretation called Originalism. For nearly two centuries, debates raged over how to interpret the Constitution. Should it be seen as a living document, evolving with the times? Should it be understood strictly as its authors intended? Or was there another way? This wasn't just an academic dispute. The answer would determine the fate of laws affecting millions of Americans—from civil rights to gun control, from privacy to presidential power.
Meese reframed the entire debate. Meese examined the crucial distinction between the Constitution itself and constitutional law. The Constitution, Meese argued, is the supreme law of the land. Constitutional law, on the other hand, is merely a body of court decisions interpreting that document.
Meese emphasized that this distinction meant Supreme Court decisions, while important, are not infallible or irreversible. He stated, “Constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.” He continued, “This is not to say that constitutional decisions by the Supreme Court do not have legal and moral validity. They do, of course, but only in the context of the specific case decided.”
Meese argued that all branches of government, not just the courts, have a duty to interpret the Constitution. He quoted James Madison: "As the three branches of government are coordinate and equally bound to support the Constitution, each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it."
To illustrate his point, Meese cited historical examples. He highlighted Abraham Lincoln's opposition to the Dred Scott decision, showing that even presidents have challenged Supreme Court rulings they believed unconstitutional. Meese criticized the Supreme Court's 1958 assertion in Cooper v. Aaron that its decisions were "the supreme law of the land," arguing this logic was "at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law."
Meese's speech was both a critique of judicial supremacy and a call for a return to what he saw as the proper method of constitutional interpretation: Originalism.
It's important to note that Meese's views on Originalism evolved over time, as did the theory itself. Initially, Meese and other early Originalists focused on the concept of "original intent"—the idea that the Constitution should be interpreted based on the intentions of its framers. Meese argued that without adherence to the original intent, there would be "no standard by which to criticize and to seek the overruling of what University of Chicago Law Professor Philip Kurland once called the 'derelicts of constitutional law' -- cases such as Dred Scott and Plessy v. Ferguson."
However, the theory of Originalism continued to develop. Many scholars and jurists, including Justice Antonin Scalia, later shifted towards "original meaning" or "original public meaning." This approach focuses not on what the framers intended, but on how the words of the Constitution would have been understood by the public at the time they were ratified.
The reaction to Meese's speech and the subsequent development of Originalist theory was polarized. Supporters saw it as a return to constitutional fidelity and a constraint on judicial overreach. Critics viewed it as an attack on the Supreme Court's authority and worried about its implications for civil rights decisions.
Meese's speech not only embodies a pivotal moment in the debate over constitutional interpretation, but it also marks the beginning of a significant evolution in Originalist theory. Whether you ultimately agree with Meese or his critics, his speech fundamentally altered the landscape of constitutional theory. It helped propel Originalism from the fringes of legal thought to the mainstream, influencing judicial nominations, legal education, and political discourse for decades to come.