Essay: Radicals in Conservative Garb

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Picking up the President's line, Meese espouses a "jurisprudence of original intention." Its gist is that members of the bench should not only conform to a strict construction of the document's words, but also put themselves so closely in harmony with the framers' purpose as to "resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment." Thus may a Justice serve the law, says Meese, "rather than being a lawmaker."

Rehnquist and Scalia, though no banner carriers for strict construction or intent, stand foursquare for judicial restraint. In fact, Rehnquist has written that the concentration of power in the Supreme Court strikes him as "basically unhealthy," a usurping of the legislative process. Scalia, a particular foe of both Roe vs. Wade and affirmative action, also believes matters like these are the natural political business of elected representatives. A court, he says, must not be poking into "social judgments that ought better be left to the democratic process."

Of course, more than a few issues have been settled by the high court because Congress, out of carelessness or political pusillanimity, has failed to address them adequately. Nonetheless, many conservatives see such doctrine as a necessary bulwark against politically driven judges with a trendy mind- set to change whatever does not suit them. Says Robert Bork, for 16 years a professor at Yale Law School and now a judge on the circuit court in Washington: "Original intent is the only legitimate basis for constitutional ! decision," for without it "there would be no law other than the will of the judge." John Noonan, a University of California law professor appointed last winter to the Ninth Circuit Court, warns that the activism of the current court has a double-barreled effect. It upsets the balance of America's governing powers by siphoning away the legislature's function of creating law, and it turns the Supreme Court "into a continuing constitutional convention," leaving the nation no rock upon which to stand. The solution? "I'm for stepping back," he says.

Liberals and even some mid-roaders, however, fear that a judicial step back might leave unprotected the rights of accused criminals and others for whom legislators may have little sympathy. They further fear that conservatives will not be satisfied merely by stepping back. As American University Law Professor Herman Schwartz puts it, these disciples of original intent really want "to roll back the clock on civil rights, civil liberties and church- state issues." Since the Administration has been stonewalled by Congress on new laws to diminish these rights and principles, it wants to enfeeble the court's will to protect them.

Though some of the points of controversy that have triggered this visceral debate, including school prayer and legalized abortion, are current, the basic arguments over strict construction, interpretation and original intent are as old as the Constitution. And despite a tendency to perceive the Founding Fathers as a like-minded convocation of high-principled thinkers, they were actually a disparate and contentious lot who wrangled over the words and intentions of the Constitution as hotly then as do the Reagan-Meese camp and its adversaries today.