The Volokh Conspiracy
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Fortieth Anniversary of Attorney General Ed Meese's Swearing In
Three lessons for Attorney General Pamela Bondi.
Forty years ago today, Edwin Meese III took the oath of office as the United States' 75th attorney general. Gary Lawson and I argue in a new book, The Meese Revolution: The Making of a Constitutional Moment, that Ed Meese was the most influential attorney general in American history. It is impossible to understand modern law without understanding Ed Meese's role and influence in shaping it. The rise of originalism, the rediscovery of separation of powers and federalism, and even the respectability of taking the Constitution's text seriously all trace to Ed Meese and his tenure at the Department of Justice.
Here are three lessons our new Attorney General, Pam Bondi, could take from Ed Meese's success.
First, it is critical to understand that ideas have consequences. In the long run, the success of a Department of Justice is not measured by its short-term litigation victories but by the ideas that it plants, even if those ideas do not take immediate root. President Ronald Reagan and his Attorney General Ed Meese understood this in a big way.
President Reagan said from the beginning of his presidency that the Soviet Union was an "evil empire" and that communism would be consigned to "the ash heap of human history." He was ridiculed by the self-declared intelligentsia, as well as the bi-partisan establishment that had settled on détente. President Reagan was right. The Soviet Union collapsed, though just after his presidency had finished. It took some time, but it happened.
Likewise, Attorney General Ed Meese called for a restoration of constitutionalism, the document's original meaning, the ordinary meaning of statutes, and the rule of law. This meant calling openly for the overruling of Roe v. Wade, an end to racial preferences, a unitary executive with no "independent agencies," and an undoing of the New Deal deathblow to federalism. In 1985, these ideas were almost universally dismissed—by the left as absurd or evil and by the mainstream right as utopian. No one in 1985 could seriously imagine any, much less all, of those consequences. As with President Reagan, Ed Meese was right. It took time, but his ideas flowered.
Attorney General Bondi should never forget that ideas matter. Litigators in the Meese Department of Justice were told to make originalist arguments even if courts were unlikely to accept them. Defending constitutionalism, originalism, and the rule of law is worth the cost of a few short-term litigation losses, no matter what the law professoriate, the self-declared intelligentsia, and the establishment say about it.
Second, Ed Meese succeeded in part because he surrounded himself with the right people —in every unit and at every level of the Department of Justice. And the "right people" means people who also understand the importance of ideas. The Meese Justice Department had lasting impact largely because it was run as an intellectual as well as a litigating and policy-making enterprise, in which ideas were sifted, challenged, refined, and ultimately implemented.
Attorney General Bondi should fill the lower ranks of the Justice Department, including her own office, with brilliant conservatives like William Rehnquist, or Antonin Scalia, or Sam Alito—all of whom got their start in life working for the Justice Department. Find the under forty-year-old leaders of the next generation, as Ed Meese did with people like Chuck Cooper and Steve Markman, who will carry their work into all levels of the legal system well beyond the term of any president. Remember that the Attorney General must listen to a lot of different people with different views before making a decision. Ronald Reagan and Ed Meese knew how to do that. And, then once the decision is made, stick to it, even when the Left screams bloody murder to the end of her tenure in office. Ronald Reagan and Ed Meese knew how to do that too.
Finally, Ed Meese and Ronald Reagan put their ideas into practice, ranging from increasing the profile of presidential signing statements in statutory construction to vetoing the Fairness Doctrine to an Office of Legal Counsel opinion pointing out that Congress had no enumerated power to run a national lottery. There are many ways that Attorney General Bondi can continue and expand this constitutionalist vision. Repeal the unauthorized and unconstitutional Justice Department regulation under which Robert Mueller and Jack Smith prosecuted Donald Trump, which Judge Aileen Cannon boldly and correctly found unlawful. Advise President Trump to veto bills, including Republican-sponsored bills, that unconstitutionally subdelegate legislative authority or otherwise exceed Congress's constitutional powers.
And keep these ideas front and center before the American public. Ed Meese's most important actions were not his litigation strategies or his organizational moves. They were his speeches, which put constitutionalism, originalism, separation of powers, and federalism on the public agenda. Everything else flowed from the ideas.
Ed Meese planted the seeds. Several generations of Meese Revolutionaries have nurtured them. Attorney General Bondi has the chance to grow a forest.
