A Critical Introduction to the Originalism Debate

Article excerpt

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.

I. 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. …