I worked at the Department of Justice during the tenure of Attorney General Edwin Meese and last Friday I had the pleasure of attending a dinner is his honor. My friend and colleague, Steve Calabresi, gave a wonderful speech, suggesting that General Meese was the most consequential of all Attorneys General. While I have not made a study of the over seventy people who have held the office, I heartily agree with Steve that General Meese left an extraordinary legacy for law and liberty that is worth recalling.
It is hard to remember just how problematic was the legal culture when General Meese took office. Many people accused the Warren Court of numerous infidelities to the Constitution, but the Burger Court may well have committed grosser blunders. It issued the opinion in Roe v. Wade, a decision singularly untethered to the Constitution. Politicians had previously criticized the Court, but more as a matter of political expediency than as a matter of legal principle. Richard Nixon, for instance, had called for “strict construction,” which was essentially code for curbing the rights the Warren Court had minted for the criminally accused.
General Meese, by contrast, did not simply suggest that some individual decisions were wrong, but provided a theory of why they were wrong. In a series of speeches, he argued that many recent decisions did not follow the original meaning of the Constitution and it was only that meaning that justified judges invalidating the laws of the democratic branches. He elevated the debate to one of principle, rather than politics, and to the question of what secures an enduring constitutional republic, rather than what appears good for day-to-day policy.
Progressive intellectual leaders warred with the U.S. Constitution at the turn of the 19th Century. While conceding that the Constitution was an advance on its alternatives in 1789, Progressives criticized the constitutional system for having too many checks and balances relative to the needs of the modern times of the late-19th and early-20th centuries. Bicameralism, judicial review, the powerful congressional committee system, Progressives argued that all of these had the effect of checking good laws as well as bad. Progressive Sen. George Norris of Nebraska frankly argued that the constitutional system resulted in the enactment of too-little legislation relative to public need.
While effective, amending the Constitution proved too difficult in practice to achieve many of the Progressives’ goals. One means to accomplish Progressive legislative goals without the difficulty of constitutional amendment was the Progressive legal argument that judges should reflexively defer to legislation enacted at both the state and the national level.