The power of giving the right speech at the right time

How Edwin Meese saved originalism.

In this piece, published in the penultimate issue of The Weekly Standard, I recalled my time working on speeches for President Reagan’s first two attorneys general, William French Smith and Edwin Meese. The most consequential speech of the many that Meese gave was his address to the American Bar Association in 1985, titled “A Jurisprudence of Original Intention.” It was a speech that stimulated a debate on legal interpretation that continues still today and which has lent support to the principles of nondiscrimination and colorblind law.

Like not a few who’ve worked in political Washington, I went there to write speeches when a speech was still regarded as a potentially splendid form of rhetoric, before tweeting started to horn in. This was 1983, and I wrote for President Reagan’s first attorney general, William French Smith. Smith left office late in the first term, and after Edwin Meese was confirmed as the new AG in February 1985, he called me about running the Justice Department’s office of public affairs. And yes, I was interested. None of Reagan’s top aides knew the president’s mind better than Meese did. And I wanted to build a speechwriting unit within the office of public affairs that would work with him and also senior officers at Justice who gave speeches. Meese was agreeable to that. I moved into my new office in February 1985, thinking a rhetorical Justice Department was not out of the question.

Two years earlier I’d met Gary McDowell at a seminar on the Constitution. Gary was a constitutional scholar with a singular wit, a conservative clearly, an author and editor both, his books included the 1981 collection Taking the Constitution Seriously, to which Robert Bork, Henry Abraham, and Harvey Mansfield had contributed. Gary was director of the office of the Bicentennial of the Constitution at the National Endowment for the Humanities in May 1985 when I hired him as our chief speechwriter.

Meese’s first major speech was scheduled for July 9, 1985, to the annual meeting of the House of Delegates of the American Bar Association. We writers met briefly with Meese to talk about the speech, which we all thought should be about the Constitution and its interpretation by judges.

We sent him a draft that reviewed major decisions from the just-concluded term, on federalism, criminal law, and religion. Meese wasn’t pleased with the approach to judging evident in some of those cases, and our draft made that clear. For example, regarding Garcia v. San Antonio Metropolitan Transit Authority, a case about federalism, the AG was prepared to say that the Court had inaccurately read the constitutional text and disregarded “the intention that state and local governments be a buffer against the centralizing tendencies” of the national government.

The draft said that “far too many” of the Court’s opinions in the past term were “more policy choices than articulations of constitutional principle.” It stated that the Court needed to adopt a more coherent jurisprudence, but that not just any would do. And what would? “A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection”—in sum, a jurisprudence of original intention. McDowell had come up with the phrase, and Meese was ready to use it.

We thought the AG would like the draft, especially since the department had recently adopted an important litigation policy: It would seek to apply in its filings, both as a party to cases and a friend of the court, “the original meaning of constitutional provisions.” But we heard nothing from his office until a few days before the speech, when Meese summoned department heads to discuss it.

It was unusual to have so many top officials gathering in the AG’s conference room to talk about an attorney general’s speech as opposed, say, to some new law enforcement strategy. Hesitation seemed to grip those seated around the table. There was a suggestion that the speech should take up a different topic, such as the department’s fight against international terrorism. Some were skittish about criticizing the Court. Meese decided to stay with the speech he had.

Within the department, there was almost immediate disagreement about original intention. According to some, not original intention but original meaning was the jurisprudence needed; it was the original meaning of the words at issue in a case that is the law and not the intentions of those who wrote them. In 1987 the department’s Office of Legal Policy published a sourcebook on “original meaning jurisprudence,” which said that this jurisprudence is “the enterprise of attempting to interpret the provisions of the Constitution as those provisions were generally understood at the time of their adoption by the society which framed and ratified them. . . . This does not entail ascertaining and obeying the private, inner intentions of the framers of a provision.”

As for how Meese himself saw the matter, the jurisprudence he called for in the ABA speech was unambiguously one of original intention. In his speeches, he used both terms. He was not dogmatic about originalism. As for McDowell, his understanding of original intention remained grounded in what the great Chief Justice John Marshall once said, that “the duty of a judge who construes an instrument is to find the intention of its makers.”

This is the story of a speech of great consequence. “A Jurisprudence of Original Intention” did not fade away, as do most speeches by cabinet members and even presidents. As I had hoped from the beginning of our rhetorical undertaking, Meese gave a number of major speeches that were ambitious in their subject matter—on federalism, separation of powers, and the rule of law—and influential in legal circles. By the summer of 1988, according to liberal law professors Ronald K. L. Collins and David M. Skover, more than 50 law reviews had published articles on “Original Intention.” Many, many more have been published since then.

Collins and Skover credit the Meese Justice Department with “redefining” constitutional discourse in a way that “put liberals in the precarious position of taking public stands against the interpretative legitimacy of the constitutional text and the framers intent—this while publicly deprecating the need to abide by the legislative will of democratic majorities.” The department had challenged what might be called the jurisprudence of a living constitution, an approach to judging that seeks to keep the Constitution in tune with the times. The leading living constitutionalist on the Court was William Brennan, who gave a speech shortly after Meese’s that defended his basically non-interpretive approach to judging and was seen as a response to “A Jurisprudence of Original Intention.” Brennan didn’t mention Meese by name, but Justice John Paul Stevens in similar speeches did so some 28 times.

In the summer of 1987 I was in my third year as head of the office of public affairs when I was asked to run the president’s speechwriting team. I accepted the job, only to learn a day later that it had been given to a member of the speechwriting unit. That was fine by me. I’d miss working with the Great Communicator but the consolation prize, if you want to call it that, was getting to work on speeches like “A Jurisprudence of Original Intention.”

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