The Volokh Conspiracy
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On March 24, 2022, I delivered the inaugural Edwin Meese III Originalism Lecture at the Heritage Foundation. The primary topic of my remarks was "Originalism and Stare Decisis in the Lower Courts." But I began with a tribute to the namesake of the award, Attorney General Meese, who was gracious enough to attend.
Here is the introduction as prepared–as I often do, I ad libbed a bit:
It is my honor to deliver the inaugural Edwin Meese III Originalism Lecture. The topic of my remarks is Originalism and Stare Decisis in the Lower Courts. But before I can even talk about originalism in the lower courts, or in any court for that matter, I need to pay deep and profound respect to the namesake of tonight's event: Edwin Meese III who is with us today.
Let's go back in time to 1985. President Reagan was sworn in for his second term. Edwin Meese III was sworn in as the Seventy-Fifth Attorney General. Chief Justice Burger would begin his final term on the Supreme Court. And I would turn one year old. Over the span of one year, there would be a revolution in the law. Justice Rehnquist became Chief Justice Rehnquist. Judge Antonin Scalia became Justice Antonin Scalia. The Justice Department was staffed with Federalist Society attorneys. And Meese delivered three foundational speeches.
First, in July 1985, Meese spoke to the American Bar Association. He announced, emphatically, that the Reagan administration would "press for a jurisprudence of original intention." The DOJ would "endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment." Meese's remarks sent shockwaves throughout the legal profession. And it struck a nerve at the Supreme Court. Three months later, Justice William Brennan, the liberal lion, felt compelled to respond.
In a speech at Georgetown, Brennan charged that originalism was "little more than arrogance cloaked as humility." Brennan endorsed living constitutionalism, and firmly rejected originalism. "The genius of the Constitution," Brennan said, "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."
The following month, in November 1985, Meese gave the second foundational speech to the D.C. Chapter of the Federalist Society Lawyers Division. And he responded, forcefully, to Justice Brennan. Originalism, Meese said "is not difficult to describe." First, "Where the language of the Constitution is specific, it must be obeyed." Second, "Where there is a demonstrable consensus among the Framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed." And third, "Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself." Finally, Meese laid out the terms of the great debate between the originalists and the living constitutionalists. He said, "We and our distinguished opponents carry on the old tradition of free, uninhibited, and vigorous debate." Meese explained that "Out of such arguments come no losers, only truth. It's the American way. And the Founders would not want it any other way."
One year later, in October 1986, Meese would give the third foundational speech. This speech came at Tulane University. Fun fact. Meese was hosted by a young law student named William Pryor, who was the President of the Tulane Federalist Society Chapter. You may have heard of him. He is now the Chief Judge of the Eleventh Circuit. At Tulane, Meese made a simple, but foundational point: there is a "necessary distinction between the Constitution and constitutional law. The two are not synonymous." Meese articulated the theory known as departmentalism. "The Supreme Court is not the only interpreter of the Constitution." Rather, "Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions." Here, Meese channeled departmentalism. This approach was not new. Abraham Lincoln articulated this perspective more than a century earlier. Yet, Meese's remarks created a firestorm in the legal profession.
These three speeches–to the ABA in July 1985, to the Federalist Society in November 1985, and to Tulane in October 1986–began this great debate. And three decades later, I think we can pronounce a winner, and a loser in this debate. Justice Brennan and living constitutionalism–they lost. Attorney General Meese, Justice Scalia, and originalism–were victorious.
If you want proof of this victory, look no further than the Supreme Court confirmation hearing that concluded today. Judge Ketanji Brown Jackson was asked how she interprets the Constitution. She said, "I'm looking at original documents. I am focusing on the original public meaning because I am constrained to interpret the text." She was asked if there is a living Constitution? Judge Jackson said, "I do not believe that there is such a thing as a living constitution." These answers would have been unthinkable three decades ago. But a nominee of a Democratic President felt compelled to identify original public meaning as part of her methodology. She is not alone. Justice Amy Coney Barrett–originalist. Justice Brett Kavanaugh–originalist. Justice Neil Gorsuch–originalist. Even Justice Elena Kagan said "we are all originalists now." By my count, with Justice Breyer's retirement, only two members of the Court rejected the label of originalism–Justice Sotomayor and, well, Chief Justice Roberts. Seven out of nine ain't bad. Still, for this amazing transformation in the law we must give credit to the namesake of this lecture: Edwin Meese III. Thank you. My sincere hope is that every year, this lecture will promote the cause of constitutional originalism, and bring honor to Meese's legacy.
And, I'm up first. Now, onto my prepared topic, Originalism and Stare Decisis in the Lower Courts.