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Religion and the First Amendment: An Inquiry Into the Presuppositions of the ‘Jurisprudence of Original Intention’

Published online by Cambridge University Press:  24 April 2015

James McBride
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Extract

In his July 1985 speech before the American Bar Association House of Delegates, Attorney General Edwin Meese provoked a storm of controversy by suggesting that the Supreme Court's decisions ought to be guided by a “jurisprudence of original intention.” This position of constitutional interpretation, coined “originalism” by the constitutional scholar Paul Brest, was considered by Meese to be “the only reliable guide for judgment.” Accordingly, the Reagan administration would press the High Court to adopt such a hermeneutical approach by selecting nominees who espoused intentionalist views—most notably in the nomination of William Rehnquist and Robert H. Bork to be Chief Justice and Associate Justice respectively.

In a highly unusual public reaction to the Attorney General's remarks, Justice William Brennan, the High Court's senior justice with 31 years of service, commented that Meese's call for a “jurisprudence of original intention” arose from “a debate about how to read a text ….” However, the very question of hermeneutical approach (which even Robert Bork took seriously) struck Mr. Meese as “liberal dogma;” for the Attorney General, reading constitutional provisions is just not problematic. “The meaning of the constitution can be known,” he insists. Justices must simply resist the temptation to superimpose their own agenda upon the nation's founding documents. Advocating the “common sense” approach of epistemological empiricism, Meese seems to suggest a literalist reading of the constitution which effortlessly brings to light its meaning “deposited” by the Framers.

Type
Research Article
Information
Journal of Law and Religion , Volume 6 , Issue 1 , 1988 , pp. 1 - 23
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1988

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