When Ronald Reagan's Attorney General Edwin Meese announced in 1986 that the president could interpret the Constitution in his own right and was not bound by Supreme Court opinions in the broad sense of adhering to them as a matter of constitutional principle, many in the legal academy acted as if Reagan was out to subvert constitutional government. While a handful of political scientists at the time held to this departmentalist view of constitutional interpretation, most academics angrily dismissed it along with Reagan's theory of original intent. Yet, in the nearly two decades that have passed since Reagan advocated original intent and the president's place as a co-equal expositor of constitutional meaning, these tenets of Reagan's constitutional vision have come to find expression in the unlikely realm of academic constitutional theory. They are, in fact, at the heart of contemporary constitutional theory. And what's more, such ideas are found as readily in the work of liberals as they are in the work of conservatives. Indeed, sharing Reagan's recognition that constitutionalism cannot be reduced to Supreme Court opinions, much of the most interesting work in constitutional theory is not easily reduced to the Left-Right divide as it was a generation ago.
Two decades ago, however, Meese's comment that judicial supremacy "was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law" set off a maelstrom. Urbane journalists and academics smugly sought to tutor the attorney general and his president in a proper understanding of constitutional government. They dismissed the notion that the president could interpret the Constitution independently of the Supreme Court and pointed to Chief Justice John Marshall's venerable opinion in Marbury v. Madison to insist that the Supreme Court was the sole and authoritative interpreter of the Constitution.
Oddly, though, Meese's claim on Reagan's behalf was part of a robust lineage in constitutional thought; it has found expression in some of the leading political thinkers and statesman in our historyincluding the likes of James Madison, Thomas Jefferson, Andrew Jackson, and Abraham Lincoln. It shouldn't escape notice that all of the agreed upon "great presidents" were departmentalists when it came to constitutional interpretationincluding FDR.
As Madison, often dubbed the "father of the Constitution, argued in the First Congress, "But the great objection drawn from the source to which the last arguments would lead us is, that the Legislature itself has no right to expound the constitution; that whenever its meaning is doubtful, you must leave it to take its course, until the Judiciary is called upon to declare its meaning." He then continued, "But, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in making out the limits of the powers of the several departments?" And again, "If the constitutional boundary of either be brought into question, I do not see that any one of these departments has more right than another to declare their sentiments on that point."
In similar fashion, Lincoln squarely rejected judicial supremacy in his "First Inaugural": "The candid citizens must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decision of the Supreme Court, the instant they are made . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, in to the hands of that eminent tribunal."
These are only some of the most famous examples. And they are not the quaint sentiments of statesmen from a world gone by. This view has, once again, come to inform the work of leading constitutional scholars. Larry Kramer's recent The People Themselves: Popular Constitutionalism and Judicial Review, for example, takes Madison and Jefferson's departmentalist vision as foundational to American constitutionalism, arguing that "the people themselves," and not the Court, were originally conceived as the primary enforcers of constitutional government. Kramer, no conservative, even notes how Meese's invocation of departmentalism evoked "conniptions" from the likes of Anthony Lewis, who wrongly insisted that constitutional government was synonymous with judicial supremacy and pointed to Marshall's Marbury opinion as if that settled the matter. Yet, as Kramer argues, Marshall's opinion in Marbury does not so readily support judicial supremacy; it is best understood as a claim for the Court as a co-equal interpreter of the Constitution. Just as the president is bound by the Constitutionand not Court opinions, which are hardly the same thingso, too, is the Court. Thus in cases before it, the Court must prefer the Constitution to an ordinary statute and, thereby, exercise the power of judicial review if the statute goes against the Constitution. But nowhere does Marshall insist in Marbury that the other branches of government are bound be the Court's interpretation of the Constitution once it has spoken. On the contrary, Marshall noted, "courts, as well as other departments, are bound by that instrument."
Mark Tushnet of Georgetown Law Center, a leading constitutional scholar on the Left, has justly praised Kramer's book as "perhaps the most important work of constitutional theory and history in a generation." Tushnet himself is the author of Taking the Constitution Away from the Courts (1999), where, taking Lincoln as his guide, he bemoans the judicial usurpation of constitutionalism. Michael Perry echoes such thoughts in We the People: The Fourteenth Amendment and the Supreme Court (1999). These scholars on the Left march in stride with scholars on the Right like Princeton's Robert George and Amherst's Hadley Arkes, who similarly rejected the Court's insistence upon judicial supremacy in a provocative 1996 First Things symposium entitled The End of Democracy? The Judicial Usurpation of Politics. True, these scholars often disagree on particulars. But in rejecting judicial supremacy and advocating the departmentalist theory of interpretationeven recognizing that the people have a vital role to play in constitutional governmentthey share more in common with one another than they do with any of the current members of the Court (all of whom insist upon judicial supremacy). If Reagan's departmentalist vision was generally viewed with skepticism at the time, it has come to be seen as foundational to American constitutionalism. This is true, no less, of his advocacy of original intent.
Once dismissed as simplistic if not silly, originalism now finds expression in the work of leading liberal constitutional scholars like Akhil Amar of Yale Law School. Amar's work has been roundly praised for its careful textual analysis and exacting attempt to get at intent by way of historical sourcesthe very sort of "interpretivism" that was once deemed "arrogant" and "impossible" by Justice William Brennan. In a similar vein, Randy Barnett's Restoring the Lost Constitution (2003) has given us a more detailed historical account of original intent, engaging dictionaries from the period to capture original meaning. In Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999), Keith Whittington of Princeton has offered a more far-reaching and principled understanding of original intent, moving beyond Robert Bork, that attaches judicial review (sans judicial supremacy) to popular sovereignty and the very purpose of a written Constitution. Even Ronald Dworkin, once a ferocious critic of originalism and often regarded as the leading constitutional thinker of his generation, now couches his arguments in terms of getting at the Founder's "true" intent. No doubt these scholars argue over who the better originalist is, often insisting, for example, that Justice Scalia, Judge Bork, or Raoul Berger is not a faithful originalist. But that is precisely the point. It is perhaps a stretch to say that we are all originalists now, but the turn to historical meaning is unmistakable. Gone are the days when Justice William Brennan could simply dismiss originalism in any form and offer in its place a freewheeling "living constitution." Gone, too, is the easy acceptance of the Court's claim to judicial supremacy in Cooper v. Aaron (1958), which Brennan had such a hand in bringing about, and which was the target of Meese's criticism.
Not only have scholars come to reject Cooper's casual reliance on Marbury, but some of the most important scholarship in the last decade has illustrated that the very decision Cooper was meant to affirmBrown v. the Board of Educationwas not nearly so important in bringing an end to racial segregation as was once supposed. Rather, changing constitutional attitudes outside the Court were far more important in making the nation live up to its constitutional values. As with Jefferson, Madison, Jackson, Lincoln, and FDR before him, Reagan did not reject a role for the Court in the constitutional scheme. But along with these presidents, he did reject the notion that the Court, and the Court alone, was the enforcer of constitutional values. It's too bad that many of the very justices Reagan appointed have altogether missed this pointinsisting that they alone "speak for the Constitution"; indeed, going so far as to insist that our belief in ourselves as a constitutional people is inextricably bound up with our faith in the Court: "If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals" (Planned Parenthood v. Casey, 1992).
The president who appointed them knew better. And like many of Reagan's other sentiments, his insistence upon the president's role in constitutional interpretation has worn well. The same cannot be said for the reaction to Reagan. So it turns out that it was the learned professors that needed schooling in the intricacies of constitutional thought and history and not the unschooled president.