Father of the Originalist Legal Revolution

Many books have been written about the presidency of Ronald Reagan or the “Reagan Revolution,” but far fewer have been written about the role that one of his most trusted appointees, Attorney General Edwin Meese, played in transforming American law. Indeed, that transformation continues to unfold as an originalist majority on the Supreme Court interprets the Constitution. Two scholars who served in the Meese Justice Department, Steven Calabresi and Gary Lawson, have filled that gap with what they call “an intellectual history” of their former boss: The Meese Revolution: The Making of a Constitutional Moment. They argue—persuasively—that Meese was probably the most important and influential attorney general in American history.

“To appreciate Ed Meese’s accomplishments,” the authors explain, you “must know something about the legal world that [he] inherited.” In the courts, academy, and profession, that world was a world of “living constitutionalism.” “Constitutional cases were not really occasions for ascertaining the meaning of the Constitution. Rather, they were occasions for judicial policymaking.” And that policymaking regularly advanced a liberal political agenda divorced from the text of the Constitution in matters of abortion, criminal justice, capital punishment, religion, speech, and voting.

As attorney general, Meese launched a counterrevolution in American law. He advocated originalism in constitutional interpretation and promoted public safety as the end of criminal justice. And he did so while also playing a major role in advancing Reagan’s domestic and national-security policies.

The authors helped Meese fire the first shots of that counterrevolution. Calabresi, a law professor at Northwestern, served as Meese’s special assistant for two years before leaving the Department to work with Meese’s counselor, Kenneth Cribb, in the White House. Lawson, a law professor at Florida, served in the Office of Legal Counsel. As Yale Law students, Calabresi and Lawson co-founded the Federalist Society and, as originalist scholars, have served with Meese for decades on its national board of directors. Both also clerked for Justice Antonin Scalia soon after President Reagan appointed him to the Supreme Court.

Meese—and his “indispensable man” Cribb—understood that the right personnel would allow them to develop the right policy, so they assembled an all-star platoon of revolutionaries. A former clerk to Chief Justice William Rehnquist, Chuck Cooper, headed the Office of Legal Counsel, and another rising star, Stephen Markman, headed the Office of Legal Policy. Terry Eastland and Gary McDowell served as speechwriters. Meese’s personal staff included special assistants Calabresi, John Harrison, and David McIntosh, as well as chief of staff Mark Levin.

These individuals went on to distinguished careers—often in the conservative legal movement. Cribb became president of the Intercollegiate Studies Network. Cooper became a premier Supreme Court advocate. A journalist, Eastland, published The Weekly Standard. Markman served on the Michigan Supreme Court. McDowell, a political scientist, later taught at several universities. An originalist scholar, Harrison teaches law at Virginia. McIntosh served in Congress before becoming President of the Club for Growth. And Levin, who wrote the foreword for the book, is a best-selling author, talk-radio host, and Fox News Channel celebrity.

Meese declared his counterrevolution in a series of memorable speeches. He delivered the first bombshell in 1985 at the annual meeting of the American Bar Association, where he called for the restoration of a jurisprudence of “original intention.” He offered a detailed critique of recent decisions of the Supreme Court, which prompted Justice William Brennan to respond derisively, in a speech at Georgetown, that originalism was “little more than arrogance cloaked as humility.” A month later, Meese replied to Brennan’s “misunderstanding,” “caricatures,” and “straw men” in a speech to the Washington, D.C., lawyers chapter of the Federalist Society. There, Meese sketched his vision for the mechanics of originalism, starting with interpreting the text as understood by its drafters and ratifiers. That year, Meese also delivered a speech on federalism at the American Enterprise Institute, where he focused on Roe v. Wade, which the Department had urged the Court to overrule.

In 1986, he delivered an address at the University of Dallas on separation of powers and critiqued caselaw about the administrative state. Later that year, Meese delivered an address at Tulane on departmentalism—the view that the three branches have an independent duty to ascertain the meaning of the Constitution. He criticized judicial supremacy and explained the difference between constitutional law (i.e., judicial decisions about the Constitution) and the text of the Constitution (i.e., the true “supreme Law of the Land”). As a student, I witnessed that speech and, as editor of the Tulane Law Review, published it and related commentaries after it generated a firestorm of criticism from the media, academy, and bar.

Meese laid the groundwork for the counterrevolution by operating what Calabresi and Lawson describe as a “law school” within the Department. Cribb served as unofficial “dean” and assembled future scholars like Harrison, John McGinnis, and Michael Rappaport and future jurists like Samuel Alito and Carolyn Kuhl. Their “academy in exile” conducted conferences on federalism, separation of powers, and economic liberties and published “a blizzard” of monographs and working papers on a range of topics—e.g., unenumerated rights, the truth-seeking function of criminal justice, religious liberty, and the equitable powers of federal courts.

The highlight of the Meese academy was the keynote address delivered by then-Judge Scalia at the 1986 conference on economic liberties. A critic of reliance on legislative history, Scalia argued that interpreters should not seek to ascertain the original intent of the Framers but that of the Constitution itself. He maintained that what mattered was the original public meaning of the text. Cribb then “wrote the word ‘stipulated’ on a piece of paper and taped it to the lectern from which Judge Scalia had delivered his remarks.” Soon afterward, Reagan nominated Scalia to serve on the Supreme Court.

Scalia’s speech and his later appointment to the Court reset the terms of the debate. The Office of Legal Policy published Original Meaning: A Sourcebook the following year. If Meese was the father of the originalism revolution, then Scalia became its first son.

Meese also implemented his vision by advising President Reagan to appoint intellectual giants to the federal circuit courts. Many, like Scalia, were distinguished law professors, such as Robert Bork, Frank Easterbrook, J. Harvie Wilkinson, Ralph Winter, Stephen Williams, and Douglas Ginsburg. Others had served in the executive branch, like Laurence Silberman, or the Senate, like James Buckley. Still others, like David Sentelle, had already served in the judiciary. Others were successful practitioners like Diarmuid O’Scannlain, Edith Jones, Jerry Smith, and Larry Edmondson.

Calabresi and Lawson tell all. They name those who frustrated the counterrevolution and those who served loyally. They identify those—like Solicitor General Charles Fried—who were not originalists or Meese revolutionaries but who nevertheless played important roles in the successes of the Department. They describe the fake scandals Meese’s critics generated to undermine his agenda and explain how those critics failed.

In the end, Calabresi and Lawson make their case for ranking Meese as the most critical and influential attorney general of all time. They acknowledge the strong cases for Homer Cummings and Robert Kennedy, who played key roles in “constitutional moments”—the authors borrow Yale Law Professor Bruce Ackerman’s concept—during the New Deal era and the Civil Rights Movement, respectively. Yet, as we celebrate the fortieth anniversary of Meese’s appointment as attorney general and witness our unfolding originalist moment, count me with Calabresi and Lawson as ranking him above all.

William H. Pryor Jr. serves as Chief Circuit Judge on the United States Court of Appeals for the Eleventh Circuit.