My inaugural Edwin Meese III Originalism Lecture was delivered at Heritage Foundation on March 24, 2022. My main topic was “Originalism & Stare Decisis in Lower Courts,” which was the focus of my comments. I opened my remarks by paying tribute the Attorney General Meese (named after the award), who was kind enough to be there.
My honor is to give the Edwin Meese III Originalism Lecture. I will be speaking on the topic “Original Originalism” Lower Courts: Originalism and Stare Decisis. However, before I even begin to talk about originalism within the lower courts (or any court at all) I have to show deep and lasting respect to Edwin Meese III. He is here today.
Let’s travel back to 1985. For his second term, President Reagan was sworn into office. Edwin Meese III became the Seventy Fiveth Attorney General. Chief Justice Burger’s final term would be on the Supreme Court. One year would pass. Within a year, the law would undergo a major revolution. Justice Rehnquist would become Chief Justice Rehnquist. Justice Antonin Scalia was replaced by Judge Antonin Scalia. Federalist Society lawyers staffed the Justice Department. Meese also delivered three speeches of foundation.
Meese made his first public appearance to the American Bar Association in July 1985. His bold declaration was that Reagan’s administration would insist on a “jurisprudence reflecting the original intention”. The DOJ will “resurrect the original meanings of Constitutional provisions and Statutes as the sole reliable guide to judgment.” The comments of Meese shocked the entire legal profession. The Supreme Court was also struck by the remarks. Justice William Brennan the liberal lion felt obliged to reply three months later.
Brennan claimed that originalism was nothing more than arrogance disguised in humility during a Georgetown speech. Brennan strongly opposed originalism. He endorsed living constitutionalism. Brennan stated, “The genius and power of the Constitution rests not in any static meaning that it may have had in a dead world but in the ability of its great principles for adapting to the current problems or needs.”
Meese made the second foundational address to the D.C. Chapter, Federalist Society Lawyers Division, November 1985. Justice Brennan was also a target of his ire. Meese replied that originalism “is easy to define.” First, the Constitution must be obeyed where the language is clear. The second is that there should be a consensus between the Framers or ratifiers on a principle contained in the Constitution. Third, “Wherever there’s ambiguity about the exact meaning of a Constitutional provision, they should be applied and interpreted in such a way as not to contradict the Constitution.” Meese outlined the terms for the debate that erupted between living and originalist constitutionalists. Meese stated, “We, our distinguished adversaries, continue the tradition of uninhibited and vigorous discussion.” Meese stated that, “Out of such arguments comes no losers. Only truth.” That’s America. It’s the American way.
Meese, one year later in October 1986 would deliver the third foundational address. Tulane University was the venue for this speech. Fun fact. William Pryor (a Tulane Federalist Society Chapter President) hosted Meese. He may be familiar to you. Now, he is the Eleventh Circuit’s Chief Judge. Meese, a Tulane professor, made an important, yet fundamental point at Tulane: There is a distinction between constitutional law and the Constitution. They aren’t synonymous. Meese developed the concept of departmentalism. “The Supreme Court does not interpret the Constitution alone.” 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.” Meese channeled departmentalism here. This is not an original approach. This perspective was formulated by Abraham Lincoln more than 100 years ago. But, Meese’s comments caused a storm in the legal profession.
This great debate was started by these three speeches to the ABA, the Federalist Society, and Tulane, in July 1985. It’s been three decades since we could declare the winner or loser of this great debate. Justice Brennan and living constitutionalism–they lost. Attorney General Meese was victorious, Justice Scalia and originalism were defeated.
The Supreme Court confirmed hearing, which concluded today, is proof that this victory was achieved. Judge Ketanji brown Jackson was asked her opinion on the Constitution. She replied, “I am looking at the original documents. Since I have to interpret it, I’m focusing my attention on the original public meaning. Was there a living Constitution? Judge Jackson replied, “I don’t believe there is such an thing as a live constitution.” This would not have been possible three decades ago. However, a Democratic Presidential nominee felt obliged to define original public meanings as part of her process. This isn’t the only one. Justice Amy Coney Barrett–originalist. Justice Brett Kavanaugh–originalist. Justice Neil Gorsuch–originalist. Justice Elena Kagan even said that they are “all originalists” now. My count shows that Justice Breyer retired, leaving only Justice Sotomayor, and Chief Justice Roberts, who rejected originalism. It’s seven out of nine, which isn’t too bad. For this remarkable transformation of the law, we have to give credit Edwin Meese III. We are grateful. I hope that this lecture, each year, will be a positive contribution to the cause of constitutional originalalism and honor Meese’s legacy.
I’m the first. Let’s now get to my topic. Lower Courts: Originalism and Stare Decisis.