The purpose of the Constitution, after all, was the creation of limited but also energetic government, institutions with the power to govern, but also with structures to keep the power in check. Hamilton, like his colleague Madison, knew that all political power is “of an encroaching nature.” In order to keep the powers created by the Constitution within the boundaries marked out by the Constitution, an independent-but constitutionally bound-judiciary was essential. 2Īn independent judiciary under the Constitution, he said, would prove to be the “citadel of public justice and the public security.” Courts were “peculiarly essential in a limited constitution.” Without them, there would be no security against “the encroachments and oppressions of the representative body,” no protection against “unjust and partial” laws. That prompted Hamilton to write his classic defense of judicial power in Federalist 78. The Anti-Federalist Brutus took him to task in the New York press for what the critics of the Constitution considered his naiveté. Ever the consummate lawyer, Hamilton pointed out that “laws are a dead letter without courts to expound and define their true meaning.” 1 You will recall that Alexander Hamilton, defending the federal courts to be created by the new Constitution, remarked that the want of a judicial power under the Articles of Confederation had been the crowning defect of that first effort at a national constitution. The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution. As the “faithful guardians of the Constitution,” the judges were expected to resist any political effort to depart from the literal provisions of the Constitution. The intended role of the judiciary generally and the Supreme Court in particular was to serve as the “bulwarks of a limited constitution.” The judges, the Founders believed, would not fail to regard the Constitution as “fundamental law” and would “regulate their decisions” by it. In reviewing a term of the Court, it is important to take a moment and reflect upon the proper role of the Supreme Court in our constitutional system. In looking back over the work of the Court, I am again struck by how little the statistics tell us about the true role of the Court. Source: Edwin Meese III, “Speech to the American Bar Association,” Washington, D.C., July 9, 1985, U.S. Perhaps most tellingly, during her 2010 nomination hearings, Justice Elena Kagan (1960–) said that in some ways “we are all originalists.” Leading liberal constitutional scholars such as Jack Balkin and Akhil Amar of Yale Law School are both self-professed originalists. Originalism, however, has gained wider acceptance across the ideological spectrum. For instance, during the Senate Judiciary Committee hearings for his failed nomination to the Supreme Court (1987), Robert Bork’s originalism was a primary point of attack. Originalism initially came under significant attack and was dismissed as the position of disaffected conservatives. Ultimately for Meese, originalism seemed to be the only way to reconcile judicial power with principles of self-government. The Constitution, according to originalists like Meese, is a contract whose terms cannot be redefined except through the amendment process. In this speech, Meese looked at several areas of constitutional law such as federalism, criminal law, and religion where he thought the Court had abandoned the original understanding of the Constitution. Meese argued for what he called a Jurisprudence of Original Intention that would bind judges to the original meaning of the text-what the words meant when they were written. Connecticut (1965), had announced previously unrecognized rights such as a general right to privacy because “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”įor Meese, this kind of reasoning simply allowed justices to do what Brutus had predicted they would do: interpret the Constitution according to its “spirit” rather than its actual text. Dulles (1958) that when interpreting the Eighth Amendment justices “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Other justices, such as William O. William Brennan (1906–1997), who came to be one of Meese’s harshest critics, had, for instance, said in his opinion in Trop v. In a series of three speeches, Ronald Reagan’s attorney general, Edwin Meese (1931– ), helped launch the “originalism revolution.” During the Warren Court era (1953–1969), justices had increasingly argued for a “living” approach to constitutional interpretation.
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