October 4, 2016

Special event to explore the impact of the "originalism revolution"

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

Thirty years ago this month, then Attorney General Ed Meese gave a speech titled “The Law of the Constitution.” It was one of three he gave that ignited a “great debate” over legitimate and illegitimate methods of constitutional interpretation. From 1789 to the 1930s, interpreting the U.S. Constitution according to its original meaning was the accepted practice. Indeed, James Madison remarked that “In that sense alone it is the legitimate Constitution. And if that not be the guide for expounding it, there can be no security for a consistent and stable … exercise of its powers.”

Yet Progressive Era leaders were frustrated with the separation of powers and other guarantees of individual liberty in the Constitution that limited government power. Instead of faithfully interpreting the Constitution, they developed “non-interpretive” approaches to construing it. Those illegitimate approaches, including “living constitution” theories, were the principal methods by which our national charter was altered in the last century.

But in the mid-1980s, Ed Meese and others launched a revival of “original meaning” thought and scholarship. That approach also became known as textualism, because it takes the Constitution’s text seriously rather than as aspirational cues that judges can manipulate to justify ever more intrusive government. Without a doubt, the debate over originalism and textualism is the most important and consequential development in constitutional law in the last half-century.

On Wednesday, Oct. 5 at noon EDT/9:00 PDT, The Heritage Foundation is sponsoring public discussion of the “Originalism Revolution” and its impact over the past 30 years. Ed Meese will provide some opening remarks, as will Eleventh Circuit Court of Appeals Judge William Pryor, who was a law student at Tulane when he hosted Ed Meese for his famous speech 30 years ago. Mike Carvin and I will then join General Meese and Judge Pryor for a discussion of the impact of the originalism revolution. You can either attend the event in person or watch the webcast by going to this link.

Among the topics we have been asked to address is whether originalism has made a difference in constitutional cases; how it operates in practice today; and whether it is likely to gain or wane in influence during the next 30 years. To preview one of my responses, a jurisprudence of original meaning probably has not made a difference in many Supreme Court cases, at least not yet, but it is wonderful to see that it is a normal part of constitutional debates and it does make a difference in an increasing number of cases.

I think its future is even more encouraging, even if the next President does not appoint many judges who are sympathetic to a jurisprudence of original meaning. Ideas have consequences, even if they take a very long time to bear fruit. I think the originalism revolution is still gathering steam. Everyone at PLF is working to advance that end. It’s exciting to be a part of it.

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