MENU

The Great Debate

Interpreting Our Written Constitution
November 01, 1986

Foreword

Today many of the most important issues facing the nation are determined by decisions of the United States Supreme Court interpreting the Federal Constitution. Surprisingly, however, the method the Court should adopt when confronted with a question of constitutional interpretation has become a point of controversy even as our constitutional bicentennial approaches. Some legal scholars contend that the document must be interpreted in light of the original meaning and common understanding of those who ratified it. Others suggest that the original meaning of the document as drafted by the founders is unknowable or irrelevant and that constitutional decision-making should be based on a judge's understanding of certain fundamental principles of moral philosophy.

In July 1985, Attorney General Meese sparked a dramatic public debate on the question of constitutional interpretation, a debate which culminated in the appointment by President Ronald Reagan of William H. Rehnquist to Chief Justice and Antonin Scalia to Associate Justice. In reviewing recent Supreme Court decisions in the areas of Federalism, Criminal Procedure, and Religious Freedom before the American Bar Association, the Attorney General urged that the Court be guided by a "Jurisprudence of Original Intention."

Supreme Court Justice Brennan entered the fray by declaring that any such endeavor was little more than "arrogance cloaked as humility." After pointing to difficulties in ascertaining the original intention of those who drafted the Constitution, Justice Brennan called instead for a jurisprudence based on the notion of "human dignity." In applying such jurisprudence, he argued, the courts are not to be fettered by the views of an earlier age, but should seek to apply the ever-evolving values of equality and individual rights.

Shortly thereafter, Supreme Court Justice John Paul Stevens spoke on the Incorporation Doctrine, which applies many of the Bill of Rights' restrictions to the States through the Fourteenth Amendment. The Attorney General has stated that there is serious scholarly debate on the justifications for the Incorporation Doctrine, but never urged the Supreme Court to abandon its jurisprudence in the area.

Attorney General Meese amplified his views in an address to the Federalist Society's Lawyers Division. The founding fathers, he stressed, sought to establish the rule of law, and not men, through a written constitution. They looked to the courts to construe the document in light of its intended meaning at the time of adoption, and feared that any other method of interpretation would subvert the value of having a written document. The Attorney General pointed out that the adoption of the Constitution was accompanied by a tremendous public debate which to a large extent has been recorded for posterity. He urged the Court to use such evidence and to refrain from engaging in constructions which conflict with the original meaning of the Constitution.

Shortly thereafter, Judge Robert Bork delivered a lecture outlining the fundamental nature of the debate over original intent. He contended that the legitimacy of judicial power necessarily rests upon the principle that judges should only impose constraints upon the democratic majorities based upon the limitations found in the written Constitution. Judge Bork exhorted the courts to apply neutral principles in determining the scope and level of generality of the constitutional rights. Adherence to the principles of interpretivism preserves the Madisonian balance between the need for majorities to exercise enumerated government powers and the freedoms of minorities. If this balance is not anchored in the principles of neutral interpretation, it will become subject to the ebb and flow of popular political sentiment.

A little over a year after Attorney General Meese initiated this historic public debate on the meaning of the Constitution, President Ronald Reagan appointed Chief Justice William H. Rehnquist and Justice Antonin Scalia to the United States Supreme Court. In his remarks on this occasion before the members of the Supreme Court, the Cabinet, and the Senate Judiciary Committee, President Reagan reminded us of Thomas Jefferson's warning that the written Constitution must not be turned into a blank slate through interpretation. The President emphasized that the American Republic-created by a written constitution and made secure by the people's love of liberty-is unique among human institutions and the last, best hope for Freedom on Earth.

Because of the importance of the issues surrounding the debate on a Jurisprudence of Original Intent, the Federalist Society is publishing this collection of these six major speeches.* In so doing we hope to encourage further discussion and debate on what is perhaps the most significant constitutional issue facing this country today. We want to express our deep appreciation to Attorney General Meese, Justices Brennan and Stevens, Judge Bork, and President Reagan for graciously granting us permission to reprint their speeches.

* We have deleted from Attorney General Meese's first speech, Justice Steven's speech, and President Reagan's speech the portions which are not relevant to this debate. Where deletions occur they are indicated by three asterisks.

Table of Contents

  1. Speech by Attorney General Edwin Meese, III
    before the American Bar Association

     
  2. Speech by Justice William J. Brennan, Jr.
    at Georgetown University

     
  3. Speech by Justice John Paul Stevens
    before the Federal Bar Association

     
  4. Speech by Attorney General Edwin Meese, III
    before The Federalist Society Lawyers Division

     
  5. Speech by Judge Robert H. Bork
    at the University of San Diego Law School

     
  6. Speech by President Ronald Reagan
    at the White House

Occasional Paper No. 2
Steven G. Calabresi, National Co-Chairman
David M. McIntosh, National Co-Chairman
Paul G. Cassell, Publications Editor
The Federalist Society, 1986©