Essay: Radicals in Conservative Garb

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The fact is that original intent, as Attorney General Meese uses it, simply melts when held up to the flame of history. Justice Sandra O'Connor reaffirmed the point not long ago in her concurrence barring Alabama's moment of silence in public schools: "It is unlikely that the (framers) anticipated the problems of interaction of church and state in the public schools," she wrote, for the simple reason that, in the 18th century, there was virtually no public education as we know it.

Besides, strict construction, though drawn as the good sword of conservatism in the current debate, has proved to be a wonderful weapon for liberals in times past. The life master among strict constructionists, Justice Hugo Black, had this to say about the rights of the accused: "I subscribe to the doctrine that the Fifth Amendment, which says 'no person shall be compelled to be a witness against himself,' means that no person shall be compelled to be a witness against himself." And there goes Meese's position against Miranda. Black was also adamant about the 14th Amendment's power to apply the entire Bill of Rights to state law.

One has to wonder whether the Attorney General has considered the kind of genie that can rise from the constructionist bottle. Strict adherence might have prevented his boss from making war in Grenada. Keeping the CIA's favorite secrets would be impossible. There could be no federal minimum wage. The Air Force could not be funded (the Constitution mentions only an Army and a Navy), and the FCC, if it existed at all, could not assign television channels.

The fact is that virtually every genuine constitutional question has unique complexities that do not lend themselves to the slambang simplicity espoused by Reagan and Meese. For as Jefferson noted two centuries ago, the founders "laid their shoulders to the great points, knowing that the little ones would follow of themselves." And as Tribe's latest book, God Save This Honorable Court, clearly shows, the very breadth of the Constitution makes it an imperfect guide in specific matters. Such vague phrases as "unreasonable search," "equal protection of the laws," or "due process," writes Tribe, "not only invite but compel the Supreme Court to put meaning into the | Constitution" rather than simply trying to take meaning from it.

By and large, that has been the court's chief business ever since it first went into business. In Holmes' words, the Constitution has ramifications that "could not have been foreseen completely by the most gifted of its begetters." How, for example, could James Madison have foreseen a wiretap? Therefore its precise phrases, and the possible intent by which they were formed in a world dead and gone, carry far less weight than the flow of legal history and the accumulated power of precedent. Says Justice William J. Brennan Jr.: "The ultimate question must be, what do the words of the text mean in our time?" John Marshall, as usual, may have put it best. "We must never forget," he wrote in McCulloch, "that this is a constitution we are expounding . . . intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."