Edwin I. Meese III was the 75th attorney general of the United States and served as one of President Reagan’s closest advisers. He now chairs the Center for Legal and Judicial Studies at the Heritage Foundation.
Mr. Meese edited “The Heritage Guide to the Constitution,” a compilation of essays by more than 100 legal scholars, explaining each clause of the Constitution. The following are excerpts from a recent telephone interview with Mr. Meese:
Q. America and the world have changed so much since the Constitution was drafted. Should there be some wiggle room? How relevant is original intent?
A. The original intent, or original meaning, of the Constitution is very relevant today because it sets forth the structure of government and the principles for operating it. It was never intended to be a municipal code or a complete statute of every little detail.
It is a set of basic principles that is adapted to each age by the people’s elected representatives, the Congress of the United States. What we should take into account are the actual words of the Constitution, and when there’s an ambiguity in those words, its original meaning. Otherwise, to merely use the Constitution as a jumping-off point, for judges to make up what they think should be there, rather than what is there, would destroy the idea of a written document. …
Q. What is the most prevalent misunderstanding about the Constitution?
A. I think one of the most common misunderstandings about the Constitution is the idea that somehow it is no longer relevant, after two centuries. In fact, the Constitution remains relevant as a set of principles and can easily be adapted to the needs of modern America.
For example, even though telephones were not known in 1787, the Congress has developed wiretapping statutes that carry forward the search warrant requirement of the Fourth Amendment. Likewise, other provisions of the Constitution have been adapted to modern days by Congress in a similar manner.
Some things that are not in the Constitution, but have been invented over the years by the Supreme Court, acting in what I would consider an illegitimate manner, are such things as the exclusion of valid probative evidence from criminal proceedings because of technicalities, the so-called “right” to an abortion, and the imposition on the states of the requirement to apportion both houses of their legislatures on the basis of population.
Q. What should Americans look for in our judges?
A. Americans should look for judges who understand the role of a judge, which is to interpret the law as it is written, and not to substitute their own policy preferences or political agenda for what is actually there.
I think that on many important occasions, courts have usurped the legislative function, and in some cases, the executive function as well, and have overstepped the bounds of judging. Examples include judges running prisons, schools and mental institutions, as well as judges overturning laws based upon their own ideas rather than what is in the Constitution.
An ideal judge is one who is faithful to the Constitution and understands the need for judicial restraint; that is, confining oneself to a judge’s responsibility of interpretation, rather than making up new law to satisfy some policy agenda.
Q. How do we ensure we get judges like that?
A. The best way to get judges who are faithful to the Constitution is to examine their past experience, their writings, their prior judicial decisions, if they’re judges; as well as to question them carefully during confirmation hearings. …
Q. You were a close adviser to President Reagan. In light of all the troubles President Bush has faced lately, what advice would you give him?
A. I think the advice I would give to the president is to follow the example of President Reagan and stay the course, and to be particularly attentive to controlling the growth of government spending, and to persevere to make the tax cuts permanent.
Q. Some observers have suggested President Bush should follow President Reagan’s example and replace some of his staff and advisers. Do you agree?
A. Well, Ronald Reagan really didn’t do that. The only change he made was his chief of staff, and that was unrelated in many ways. And I guess some of his national security people. It was not really a shake-up.
When Ronald Reagan ran into trouble over the Iran-Contra situation, he took corrective action to resolve that issue. But he did not deviate from his basic principles and his critical objectives of economic growth, ending the Cold War, and reviving the spirit of the American people.
Q. You distinguish between the “consent of the governed” and “the will of the majority.”
A. The consent of the governed means that the power, and the basic principle, of governing come from the people themselves. … In general, specific policies are decided by majority rule, but there are certain fundamental principles which the people themselves have also put into the Constitution as an enduring document, which then set forth the parameters within which the majority is able to act.
One important example is freedom of speech, so that citizens less than the majority can attempt to explain their point of view, attract other adherents, and try to form a new majority in favor of what they advocate.
Q. In your introduction, you wrote, “We have seen throughout our history that when the Supreme Court greatly misconstrues the Constitution, generations of mischief may follow.” What is an example of that?
A. Plessy [v.] Ferguson, which established the “separate but equal” doctrine. The Dred Scott decision, which supported the continuation of slavery, which facilitated slavery. Roe [v.] Wade, which has divided the country on the issue of abortion.
Q. How do we get to that point?
A. When judges do not limit their role to judging, but make up the law to achieve a policy objective or a political agenda.
Q. Why has our Constitution endured?
A. I think there are several reasons. One, it’s a written Constitution, so it’s unlike any other legal document. You can point to specific provisions as the basis for judicial determinations. Secondly, it does not attempt to encompass every detail of government, but is limited to a basic structure of government and the principles to operate it. And thirdly, it allows for both amendment as well as … continued adaptation by the people’s representatives.