By Seth Stern and Stephen Wermiel, coauthors of Justice Brennan: Liberal Champion, which will be published this week. Stern is a reporter for Congressional Quarterly and a Harvard Law School graduate. Wermiel teaches constitutional law at American University Washington College of Law.
Twenty five years ago this month, Justice William J. Brennan Jr. engaged Attorney General Edwin Meese in a then unprecedented public debate on constitutional interpretation.
Brennan, who at 79 remained the Supreme Court's most vigorous proponent of a living constitution, never actually shared a stage with Meese, President Reagan's long time adviser and leading advocate of originalism. If they had, the ideal venue for this jurisprudential equivalent of the 1975 match, pitting Muhammad Ali against Joe Frazier and nicknamed the "Thrilla in Manila," might have been a boxing ring.
Meese had lobbed the first volley in a July, 1985 speech to the American Bar Association's annual convention in Washington, D.C. titled "Jurisprudence of Original Intention." He generated headlines by criticizing the Court for "a drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren Court."
Meese later admitted he purposely chose the prominent venue - and provocative tone - to raise originalism's profile. The idea that the Constitution should be interpreted according to the original understanding of the founding fathers had gained currency among conservative legal scholars in the previous decade but not yet seeped into the public consciousness.
Brennan, then just beginning his thirtieth term on the court, privately insisted he hadn't intended to rebut Meese when he stood up to defend his vision of a living constitution at a Georgetown University symposium on Oct. 12, 1985.
As we reveal, his clerks had actually started working on his talk before Meese spoke out and much of what Brennan said was recycled from earlier speeches since his goal was to show how the Constitution's text had influenced him in the past. Indeed the forum was an academic conference on influential texts, not a likely venue for a constitutional throwdown.
Putting aside the spicy one-liners - such as the one accusing advocates of originalism of practicing a "facile historicism" - the speech was largely a restatement of Brennan's longstanding views. Brennan had long maintained that the Constitution was a living document that should be interpreted to reflect fundamental underlying principles such as "human dignity" as well as the values of a given era that might not be expressly stated in the Constitution.
Nevertheless, most people who subsequently read the speech understandably interpreted it as a counter-offensive against Meese as they heard the court's leading liberal dismiss attempts to "find legitimacy in fidelity" to the intentions of the framers as "little more than arrogance cloaked as humility."
Brennan said advocates of originalism underestimated the difficulty in parsing the founders' intentions, given the sparse records of the ratification debates and ambiguous evidence of their intentions. Instead, he insisted "current justices read the Constitution the only way we can: as twentieth-century Americans."
"For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs," Brennan said.
The debate between Brennan and the Meese Justice Department only grew more heated as it spilled into 1986. William Bradford Reynolds, a top Justice Department aide, singled out the justice by name in a speech where he accused Brennan of turning "his back on text and historical context, and argues instead for a jurisprudence that rests, at bottom, on a faith in the idea of a living, evolving Constitution of uncertain and wholly uninhibited meaning."
In retrospect, Meese could not have been more pleased with Brennan's decision to engage him in such a public dialogue.
"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.
Perhaps Meese has given Brennan undue credit - or blame - for raising public awareness about originalism. But from the vantage point of today, two decades after Brennan's retirement, it would seem as if Meese has proven a more effective salesman.
The originalism that Meese advocated in 1985 never took hold, but everyone it seems has become an advocate - although perhaps not a practitioner - of judicial modesty. By contrast, Brennan's vision of a living constitution to be adapted flexibly to contemporary circumstances seems increasingly anachronistic.
Progressive legal scholars have intentionally distanced themselves from the idea of a living constitution as they grope for a new way of talking about constitutional interpretation that could effectively counter conservatives' talk of judicial restraint. In their recently republished book, Keeping Faith with the Constitution, Pamela Karlan, Goodwin Liu and Christopher Schroeder instead term their method "constitutional fidelity." (One recent exception is David Strauss, who titled his new book, The Living Constitution.)
No one better embodies the liberal ambivalence about Brennan's vision of a living constitution than President Barack Obama. As a candidate, Obama cited Brennan - along with Thurgood Marshall and Earl Warren - as "heroes of mine" but immediately added the caveat, "That doesn't mean that I think their judicial philosophy is appropriate for today."
Within the Supreme Court, Stephen Breyer has emerged as the most vocal opponent of originalism. He explicitly rejects "approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing" in his new book, Making Our Democracy Work.
In a recent New Yorker profile, Jeffrey Toobin noted that Breyer "does not associate himself with the liberal tradition of Brennan and Thurgood Marshall, who saw the Constitution as a vehicle for social change."
And yet, in describing his approach to constitutional interpretation, Breyer wrote, "the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."
Justice Brennan couldn't have said it better himself.