Meese's 'Original Intent;' a Constitutional Shell Game

By Schwartz, Herman | The Nation, December 7, 1985 | Go to article overview

Meese's 'Original Intent;' a Constitutional Shell Game


Schwartz, Herman, The Nation


The debate over whether the Constitution should be construed as the framers "intended" illustrates the way in which this Administration shapes public controversies to hide its true goals. It sounds like a problem of lofty constitutional significance, but it's really part of an extensive campaign to diminish Americans' constitutional rights by weakening the courts' protection of them.

The Administration's strategy was launched this summer, when Attorney General Edwin Meese 3d tore into the Supreme Court before the American Bar Association. He questioned the Court's sixty-year-old "incorporation doctrine," whereby key provisions of the Bill of Rights, like freedom of speech, press and religion, and various rights relating to criminal procedure are made applicable to state and local officials through the Fourteenth Amendment. Characterizing the doctrine as "constitutionally suspect," "intellectually shaky" and "politically violent," and criticizing the Court for deciding press on policy grounds rather than on constitutional principles, he called for a "jurisprudence of original intention." He returned to this theme on November 15, charging that some judges are engaged in "a form of chameleon jurisprudence, changing color and form in each era," and that a focus on "concepts of human dignity" has led to some remarkable and tragic conclusions."

Insistence on the "original intent" is politically astute: a certain group of people drafted our Constitution, and to understand what they wrote, it seems reasonable to look to what they intended to accomplish.

This apparent reasonableness masks a hidden agenda, however, which Justice William J. Brennan Jr. spotted. In a speech at Georgetown University in October, he pointed out that upholding "constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption . . . against the claim," for it locks us into an era when our notions of liberty and morality were much less developed. In 1787 capital punishment for horse theft, burglary and counterfeiting was not uncommon; states had established churches and seditius libel was a crime. And though Brown v. Board of Education is now so sacred that even Meese finds it politic to praise it, in 1866 the framers of the Fourteenth Amendment approved of segregation in schools and transportation, the poll tax, anti-miscegenation statutes and laws denying blacks the right to serve on juries. Soon after, in 1873, the Supreme Court allowed Illinois to deny women the right to practice law. Meese has cited the Dred Scott decisions as a "tragic conclusion" of looking primarily to "concepts of human dignity." He failed to mention that Chief Justice Roger B. Taney "read blacks out of the Constitution," as Meese describes it, not on some "concepts of human dignity" but on an elaborate analysis of the framers' intent. In sentiments often echoed by Meese, Taney wrote:

No one, we presume, supposes that any change in public opinion or feeling . . . should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.

On the other hand, the historical record shows that the framers of the Fourteenth Amendment had no objection to racial preferences and affirmative action. The Freedmen's Bureau Act, also adopted by the Thirty-ninth Congress, was bitterly opposed because, as one senator complained, it "gives them [blacks] favors that the poor white boy in the North cannot get."

Obviously, Meese does not try to justify school segregation or antimiscegenation statutes today, and certainly not racial preferences, even if the framers did approve of them. But if there is discretion to choose which intentions to honor and which to reject, by what criteria are those choices to be made? Except by exercising a contemporary moral and practical judgment, how can one reject the framers' views on some things but not on others? …

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