Meese Credits Brennan with Publicizing Originalism

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I was traveling on Wednesday when the Wall Street Journal‘s Jess Bravin sent out this tweet: “The Meese Still Roars: Ex-AG at Heritage Fdn dinner in #SCOTUS Great Hall, recalls ’80s debate with J. Brennan”

As Steve and I noted last month, this year happens to be the 25th anniversary of a rather remarkable debate between Justice Brennan and then Attorney General Edwin Meese over constitutional interpretation.

Bravin was attending a Heritage Foundation event at the Supreme Court celebrating Meese’s effort to convince the public that the Constitution should be interpreted according to the original understanding of the founding fathers. This wasn’t the first time Meese has credited Brennan with helping raise originalism’s profile by engaging with him a quarter century ago.

“I suspect that if Justice Brennan had not replied, my speech in 1985 would have gone with most other ABA speeches into the proceedings never to have been heard of again,” Meese said at a gala dinner celebrating the Federalist Society’s twenty-fifth anniversary in 2007.

I didn’t have any success in trying to interview Meese about the episode as part of my research for Justice Brennan: Liberal Champion. But I did speak to several of his key deputies from that era, including William Bradford Reynolds and Gary McDowell, who offered some behind-the-scenes recollections of the exchanges with Brennan.

In advance of the event this week, Julia Shaw wrote a blog post for Heritage quoting from some of the speeches Meese and Brennan delivered. She credited Meese with changing “how America thought and spoke about the Constitution.” Shaw writes, “He did not invent originalism but reinvigorated the public discourse and gave conservatives an affirmative theory of how to think about the Constitution.”

I read a very different take on originalism in The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History, a new book by Jill Lepore, a Harvard University history professor and New Yorker writer.

“It’s possible to cherish the stability of the law and the durability of change and one civil war and tested in the courts, without dragging the Founding Fathers from their graves,” Lepore writes. “To point this out neither dishonors the past nor relieves anyone of the obligation to study it. To the contrary.”

She continues, “‘What would the founders do?’ is, from the point of view of historical analysis, an ill-considered and unanswerable question, and pointless, too.”

I won’t weigh in on who is right about originalism, but I can say definitively that Shaw is wrong about one thing in her blog post. Brennan didn’t “set out to correct” Meese when he spoke at Georgetown in Oct. 1985.

As we detail, Brennan and his clerks had started working on that speech before Meese delivered the first salvo three months earlier. But Brennan certainly wasn’t disappointed when reporters interpreted his speech as a rebuttal.

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