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15 U. Pa. J. Const. L. Height. Scrutiny 1 (2012-2013)

handle is hein.journals/jclon15 and id is 1 raw text is: ORIGINALIST IDEOLOGY AND THE RULE OF LAW Ian Bartrum In July of 1985, Attorney General Edwin Meese addressed the na- tional convention of the American Bar Association with hopes of in- spiring a fundamental change in constitutional interpretation. He railed against the Supreme Court's unprincipled turn towards a 'ju- risprudence of idiosyncrasy, lamented recent decisions as more pol- icy choices than articulations of constitutional principle, and called urgently on the Justices to adopt a coherent jurisprudential stance, lest a constitution in the true sense cease to exist.2 Meese had a particular stance in mind, and, to no one's surprise, it was not a re- turn to the Warren Court's brand of radical egalitarianism.3 Ra- ther, he claimed that the only interpretive theory adequate to protect our democratic institutions and the rule of law is a jurisprudence of original intention. Of course, most such attempts to initiate broad interpretive change have fairly limited effect, but Meese's speech seemed to engage an idea whose time had come, and, in retrospect, it helped bring about something of a sea change in constitutional theo- ry. To wit, Justice Antonin Scalia recently reflected that, unlike cir- cumstances at the time of his appointment, I[o] riginalism is [now] in the game, even if it does not always prevail.5 And, a little over a dec- ade after Meese's speech, Laurence Tribe would summarize some of Ronald Dworkin's thoughts with what has become a contemporary ubiquity: We are all originalists now. While Meese certainly did not invent originalism, his speech un- doubtedly helped revive an approach that had fallen into some dis- * Associate Professor, William S. Boyd School of Law, UNLV. Many thanks to Sean Wilson, whose fundamental insights about language and meaning deeply inform this paper. Arty misunderstandings or misapplications of those insights are entirely my own. 1 See Edwin Meese III, Speech Before the American Bar Association (July 9, 1985), reprinted in ORIGINALISM: A QUARTER-CENTURY OF DEBATE 47 (Steven G. Calabresi ed., 2007). 2 Id. at 50, 52-53. 3 Id. at 52. 4 Id. 5 Antonin Scalia, Foreword to ORIGINALISM: A QUARTER-CENTURY OF DEBATE 43, 44 (Steven G. Calabresi ed., 2007). 6 Laurence H. Tribe, Comment, in ANTONIN SCALIA, A MATTER OF INTERPRETATION 65, 67 (1997). 1