The Supreme Court’s Originalists Are Fundamentally Wrong About History

The Founders didn’t believe the Constitution had a fixed meaning. So why do so many of the justices?

In early July 1985, U.S. Attorney General Edwin Meese launched a legal revolution from the tony confines of the Sheraton Washington Hotel. Speaking to the American Bar Association, he argued that “far too many” Supreme Court decisions had devolved into mere “policy choices,” driven by the justices’ personal preferences, rather than following “constitutional principle.” In a fiery line that Meese skipped when he read the speech but that appeared prominently in the published version, he said the court’s turn to policymaking was most evident in “the radical egalitarianism and expansive civil libertarianism of the Warren Court.” The Warren court had, among other things, desegregated public schools in Brown v. Board, guaranteed equal voting rights in Reynolds v. Sims, and protected the right to contraception in Griswold v. Connecticut. Now, in 1985, Meese labeled the court’s “egalitarianism” a “threat” to the proper legal order.

Meese demanded a different form of judging. He called it “a Jurisprudence of Original Intention.” The Constitution’s framers “chose their words carefully,” he said, and those words “meant something.” The Supreme Court’s job was to find and enforce that meaning. Meese then promised that the Justice Department would “press for a Jurisprudence of Original Intention.” In 1988, the department duly released its Guidelines on Constitutional Litigation, which claimed that “constitutional language should be construed as it was publicly understood at the time of its drafting and ratification.” All government lawyers “should attempt to construct arguments based solely” on that original meaning. Thus did originalism—which had been percolating among conservative scholars and jurists like Antonin Scalia and Robert Bork—surge onto the public stage.