Meese Again Attacks Judicial Activism : Intensifies Criticism of Decisions Based on ‘Social Theories’

Times Staff Writer

Atty. Gen. Edwin Meese III, striking back at critics of the Administration’s view of how the Supreme Court should interpret the Constitution, intensified his attack on judicial activism Friday and called again for a return to the “original intent” of the framers of the 198-year-old document.

In a speech, Meese directed his fire at jurists who, in the guise of adapting the law to current needs, impose their own views in a kind of “chameleon jurisprudence, changing color and form in each era.”

“There is a danger in seeing the Constitution as an empty vessel into which each generation may pour its passion and prejudice,” he said.


The attorney general criticized the Supreme Court’s 1973 ruling legalizing abortion as among the decisions that were grounded in “social theories, moral philosophies or personal notions of human dignity” rather than constitutional law.

Conflict With Liberals

The speech represented the latest round in an unusual debate that has brought the Administration into sharp conflict with liberals, legal commentators and even some members of the high court itself.

It began last July with a speech by Meese before the American Bar Assn., in which he criticized the court for rulings on religion, criminal law and states’ rights that he said reflected “policy decisions” by the justices rather than reliance on constitutional principles. He pledged that, in future cases, the Administration would try to resurrect the “original meaning” of constitutional provisions and federal statutes.

In addition, Meese criticized as “intellectually shaky” the doctrine under which the court has applied the Bill of Rights--amendments guaranteeing such rights as freedom of speech and religion--to the states. Critics have charged--but Meese denied--that the Administration wants the doctrine overturned.

Brennan Defends ‘Activism’

In October, Justice William J. Brennan Jr., regarded as the most liberal member of the court, said in a speech that the Administration’s view reflected “arrogance cloaked as humility.” Brennan strongly defended his own so-called “activism” and said that the court must adapt its rulings to changes in society.

Then Justice John Paul Stevens, a court moderate, joined the debate, making a speech criticizing Meese and defending in particular a decision that the attorney general had assailed in which the court struck down an Alabama law calling for a “moment of silence” for prayer in public schools.


Meese, speaking Friday before the lawyers’ division of the Federalist Society, a conservative group, said he welcomed the new debate. But he sought to clarify his position in the dispute, saying that there has been “some misunderstanding, some perhaps on purpose.”

“The Constitution is not a legislative code bound to the time in which it was written,” he acknowledged. “Neither, however, is it a mirror that simply reflects the thoughts and ideas of those who stand before it.”

Legalizing of Abortion

Meese said that, too often in recent decades, the Constitution had been used as a “charter for judicial activism” in court decisions not fully supported by the document’s text or history. One such ruling, he indicated, was Roe vs. Wade, the decision legalizing abortion, which the Administration has urged the justices to overturn during their current term.

The attorney general said that activist judges had accepted the “illusory invitation” in the general wording of the Constitution to read their own values into its provisions.

“One Supreme Court justice (identified later by a Justice Department official as the late William O. Douglas) identified the proper judicial standard as asking, ‘What’s best for the country?’ ” Meese noted. “Another (Brennan) said it is important to ‘keep the court out in front’ of the general society.”

Meese readily acknowledged that there were instances in which court decisions not only were generally popular but were grounded on sound legal principle. The court’s 1954 ruling striking down school segregation “earned all the plaudits it received,” he said. But the court then was not “adapting” the Constitution to “new reality,” he said, but rather was restoring the aim of post-Civil War amendments guaranteeing equal treatment to blacks.

The Administration’s call for a “jurisprudence of original intention,” he said, “is not a jurisprudence of political results.” He stated the doctrine as follows:

“Where the language of the Constitution is specific, it must be obeyed. Where there is a demonstrable consensus among the framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself.”