Edwin Meese III was the US Attorney General under Ronald Reagan (1985-1988) and one of the contemporary founders of originalism. In 2019, President Trump awarded Meese the Presidential Medal of Freedom. He is a leader in conservative thought and has advocated for Constitutional principles throughout his years of public service.
Alex Fasseas & Ryan Frant: Is originalism a relatively new theory in constitutional interpretation?
Edwin Meese III: Originalism actually goes all the way back to the time of the Founders. They expected that the language of the Constitution would be interpreted as written and that judges would remain within the Constitution in the decision of cases.
AF/RF: Could you briefly explain your philosophy of “original intent?”
EM: Yes, although it is probably better expressed as original understanding. In other words, the theory interprets the Constitution by asking how the society at the time of ratification reasonably understood what the provision meant. Critics have misinterpreted my theory by claiming that it requires knowledge of the writers’ intentions, but when I use the phrase original intent, I am looking at the actual words in the Constitution―not whatever the Founders had in their minds. Therefore, I encourage judges to interpret the Constitution as they would interpret any other legal document like a will or a contract. By sticking to the Constitution, the theory prevents judges from having their own personal biases or policy preferences.
AF/RF: Does democracy require an originalist understanding of the Constitution?
EM: Yes it does. Under our democratic system, the laws have the democratic consent of the people through the legislative process. Thus, the resulting laws―as they are written―are the outcome of the democratic will. Think of the alternative: if judges could go beyond what the text permits, then the third branch, which is not directly responsible to the people, would make new laws that were not approved by the people. Originalism, then, protects democracy by ensuring that the government is held accountable by the public.
AF/RF: In your mind, what is a prominent Supreme Court case that was decided wrongly?
EM: Roe v. Wade. It was wrong on two counts. On one hand, the majority fabricated things that were not in the Constitution; on the other, the Court took a topic―namely matters pertaining to family and marriage―which had never before been within the province of federal law. The issue was already being solved by the different states in their different ways, but the Court gave the federal government this power instead. Opinions on local matters, such as family life and reproductive rights, were never meant to be handled by the federal government. Roe v. Wade was a serious violation of this concept.
AF/RF: Given the either-or nature of the abortion debate, should there be a general national consensus or moral agreement on the issue before deciding the legality of abortion?
EM: There are a lot of moral issues that do not have national consensus. For example, some states allow for capital punishment, other states don’t. If you disagree with your state’s laws, you have two remedies at your disposal: you can either move to another state or you can organize with other people who share your views to try to change your state’s law. In contrast, it’s much harder to change laws at a national level, particularly when people from different states have dissimilar views. Thus, a state’s freedom to choose is actually a strength of democracy.
AF/RF: Are there any contemporary issues (e.g., the development of complex artificial intelligence) that the Constitution does not give any guidance for dealing with? What should originalism do when there is no text at hand?
EM: The Constitution is meant to set forth basic principles that are then adapted to specific situations by legislative bodies. When you have developments like artificial intelligence―something unimaginable to the Founders―the Constitution still has principles for the legislative bodies to abide by. The best example of this is wiretapping. Obviously, the telephone was unknown to the Founders, but when the Court had to decide whether wiretapping without a warrant is a legitimate act of law enforcement, the Court applied the fourth amendment, which deals with improper searches and seizures. This principle applies to telephone conversations with the same ease that it had applied to more direct individual situations in the 1700s.
AF/RF: Ever since the failed appointment of Judge Robert Bork, the confirmation process has become increasingly partisan. Because this is a lifetime position with immense political consequences, do you think this politicization is justified as a democratic check on the Court?
EM: No, I don’t think it’s justified because the judicial was the one branch of government that was deemed not to be democratic. Justices on the Court are separate from politics; hence, their decisions should be non-political. That is why they have lifetime tenure.
If you go back before Bork, most confirmation processes centered around the qualifications of the candidates, and it was, for the most part, a non-partisan proceeding. In the 1930s, William O. Douglas, who was probably the most liberal judge ever nominated to the Supreme Court at the time, wasn’t even asked to appear before the Senate Judiciary Committee during his confirmation hearing. And actually, in most cases, they didn’t ask questions at all. Even Ronald Reagan’s appointment of Justice Scalia, right before Bork, was approved unanimously.
AF/RF: Was it Judge Bork’s originalist philosophy that made him so controversial, or were there other political factors at play?
EM: Well it was a combination of factors. The Senate had just changed hands from Republican to Democratic leadership, which created some pretty strong tensions between the two parties. In addition, many left-wing legal groups, like People For the American Way and Alliance For Justice, sought to politicize the appointment process in order to forestall the confirmation of originalist judges. All of these elements converged on Bork’s nomination, leading to his unfortunate rejection.
AF/RF: In recent months the idea of expanding the Court has entered the national spotlight; indeed, many Americans see the Court as an undemocratic institution in need of reform. What would you say to these Americans?
EM: I would say that the Court is not a democratic institution by the design of the Founders. They wanted a non-political group of people to interpret the Constitution as written and to render a non-political judgement. The Court is not undemocratic but non-democratic, in other words non-partisan. If we decide to change the size of the Court, every time a different party gains power it will manipulate the size and composition of the Court to render a political judgement. We would lose a fair and nonpartisan judiciary.
*This interview has been edited for length and clarity.