Essay: Radicals in Conservative Garb

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Meese's passion for intent is so great that he has praised Marshall for it, even in Marbury vs. Madison. Meese has also managed to laud the decision on McCulloch vs. Maryland in 1819 as an exemplar of intent--the intent, says Meese, to leave lawmaking to Congress. Yet the primary effect of McCulloch, which rejected a state challenge to the national bank, was to affirm federal power over the states in any fundamental legal confrontation. In his opinion, Marshall inveighed against "the baneful influence of . . . narrow construction on all the operations of the government." Despite these heavy wounds, both strict construction and original intent have been summoned up again and again by judicial advocates who have found them useful. Chief Justice Roger Taney, a sometime slaveholder, invoked both when, in 1857, he handed down the decision denying the freedom sought by the slave Dred Scott. Neither slaves nor their descendants, said Taney, were "intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges." Nor could they ever be included, since no court or Congress or President could "exercise any authority beyond the limits marked out by the Constitution, (which) speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers."

Constitutional scholars like Harvard's Laurence Tribe and Columbia's Vincent Blasi see a cloaked radicalism in such doctrine. While claiming legitimacy from the founders, they argue, a decision like Dred Scott flouts decades of evolving law and practice--in this case the Missouri Compromise, along with other statutes through which Congress sought to regulate slavery in the territories. The real orthodoxy and stability in law, says Blasi, is to adhere to the expanding thrust of precedent, and to respect and integrate the judgments of successive generations, rather than ascribe mythical intentions to the Founding Fathers. As Justice Oliver Wendell Holmes wrote, "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have long since vanished."

Almost 40 years after Dred Scott, well after the Civil War and the l3th, l4th and l5th Amendments had guaranteed the long-denied citizenship and rights within all the United States, the court did it again. Seizing on the 14th Amendment's phrase "equal protection under the law," it upheld, in Plessy vs. Ferguson, a Louisiana statute mandating separate but "equal" public facilities for blacks. Indeed, those challenging Rehnquist's nomination cite a memorandum he once wrote stating, "I think Plessy vs. Ferguson was right and should be reaffirmed."

Meese has denigrated the Dred Scott and Plessy opinions and has cheered the 1954 Brown vs. Board of Education verdict, whose broad result was to end legal segregation. In Brown, said Meese, the court "was restoring the original principle of the Constitution to constitutional law." Yet the Brown decision $ rests primarily on an interpretation, not a strict reading, of the 14th Amendment's equal-protection clause. And it was attacked by segregationists at the time as social engineering that went against the intentions of the amendment's framers.