The 1985 Debate Between Edwin Meese and William Brennan That Revived Originalism

On July 9, 1985, the Attorney General of the United States stood before the American Bar Association in Washington and did something Attorneys General are not supposed to do. He picked a fight with the Supreme Court over philosophy. Not over a case, not over a nominee, but over the question of what the Constitution is. Three months later, a sitting Justice gave a lecture at Georgetown that nearly everyone heard as an answer, with eloquence and no small amount of heat, though he never named the Attorney General.

Washington does not often produce a genuine intellectual debate. It produces hearings, leaks and strongly worded letters. This one was different. It gave the country a vocabulary, two competing ideas of constitutional law, and an argument that is still running forty years later. Here is how it happened, who said what, how the argument changed shape, and where it stands now.

The Court that Meese was arguing with

To understand 1985 you have to know what the legal world looked like in the decades before. From the 1950s through the 1970s, the Supreme Court under Chief Justices Warren and then Burger had expanded constitutional protections in a series of landmark rulings on school segregation, criminal procedure, speech, voting, privacy and religion. Many of those rulings were celebrated, and several were deeply controversial. What troubled conservative lawyers was less any single result than the method: opinions that seemed to rest more on a vision of justice than on text and history.

Conservative scholars had been developing a critique for years. Robert Bork, then a law professor, had published an influential article in the Indiana Law Journal in 1971 arguing that judges needed "neutral principles" derived from the Constitution, not from their own preferences. Others made similar points. By the early 1980s a generation of young lawyers was convinced that constitutional law had come loose from its moorings.

Ronald Reagan won the presidency promising, among other things, to appoint judges who would respect the limits of their office. His Attorney General, Edwin Meese III, who took office in February 1985, decided that the administration should say publicly what it meant.

July 9, 1985: Meese's speech

Meese's speech to the American Bar Association was an argument, not a policy memo. His central claim was that the Constitution is a written document with a fixed meaning, and that the proper way to interpret it was what he called a "jurisprudence of original intention." Judges, he said, should resist the temptation to make "policy choices" and instead hold to the text and the intentions of those who framed and ratified it. He charged that parts of the Court's modern constitutional law had drifted from that standard, and he called on the legal profession to take the question seriously.

Two points about the speech are worth stating carefully, because later retellings flatten them.

First, Meese was not announcing a new idea. The claim that judges should be bound by the written law is as old as Marbury v. Madison and Federalist 78. What was new was the Attorney General saying it as a matter of administration policy, in a hostile room, and naming a school of thought. He gave an old idea a banner.

Second, the phrase "original intention" would prove to be the weak point of the position. It invited a reasonable objection: whose intention? The drafters in Philadelphia met in secret, took incomplete notes and disagreed with each other. The people who ratified the Constitution in the state conventions, whose votes made it law, had their own understandings. And a legislator's private hope is not the same as the meaning of the words the whole country adopted. Critics seized on this, and the defenders of the method eventually conceded the point and rebuilt it, as we will see below.

October 12, 1985: Brennan answers

Justice William Brennan had joined the Court in 1956, appointed by President Eisenhower, and had become the leading voice of its liberal wing. On October 12, 1985, he delivered a lecture at Georgetown University, at a symposium on text and teaching, titled "The Constitution of the United States: Contemporary Ratification." Most listeners and readers took it as a reply to the Attorney General, though Brennan's biographers argue he did not intend it as one, and it was delivered with a Justice's courtesy.

Brennan's argument had a clear shape, and it deserves to be stated the way he would have recognized.

1. The framers' intent is largely unknowable. The historical record, he said, is thin and conflicting, and to claim certainty about what the framers wanted on a modern question is to claim more than the evidence allows. He described the insistence on discovering that intent as a kind of arrogance cloaked as humility, because the judge who says "I am merely following the framers" is, in practice, choosing among competing readings of an incomplete record.
2. The Constitution's great clauses are general on purpose. "Equal protection," "due process," "cruel and unusual" are principles, and principles must be applied to circumstances the framers never saw.
3. The question therefore is what the text means in our time. Brennan's phrase for the process was "contemporary ratification": each generation reads the document's principles in light of the society's evolving understanding of human dignity.
4. Judges are suited to this task. The Court's duty, in his account, was to give the abstractions a living content, as the Justices had done in cases protecting the vulnerable and the accused.

There is a moral earnestness in that lecture that deserves respect. Brennan was a man who believed that constitutional guarantees should expand human dignity, and he said so. His argument was also a coherent one: if you do not think the history can be known with certainty, and you think the clauses state principles, you will tend to land where he landed.

What Meese's critics got right, and what his defenders answered

Fairness requires crediting the strongest points on each side.

Brennan's best point was the one about intent. The claim that the Constitution means what its drafters "intended" runs into the plain fact that drafters are many and their intentions are not recoverable with any precision. Thoughtful originalists agreed. The answer they developed was not to abandon the method but to correct its target.

Here is the correction. In the years after 1985, scholars and judges, with Justice Antonin Scalia among the most visible, shifted from asking what the framers intended to asking what the words meant to the public that adopted them: original public meaning. Scalia's 1988 lecture, "Originalism: The Lesser Evil," published in the University of Cincinnati Law Review in 1989, made the case for the method in a way that conceded its difficulties and argued that it was nonetheless better than the alternatives. A judge looking for the public meaning of "unreasonable searches" in 1791 reads dictionaries, statutes, common-law cases and debates, the kind of evidence anyone can check. The goal is to find what a reasonable reader would have understood, not to read minds.

That shift answered the "whose intention" objection but did not end the argument. Brennan's deeper claim was never only about evidence. It was about legitimacy: even if the meaning could be found, why should the dead govern the living? And the defenders' answer to that is the one the Constitution itself supplies. Article V gives the living a way to change the text, by two-thirds of both houses of Congress or a convention called on the application of two-thirds of the states, and ratification by three-fourths of the states. If a generation wants a different Constitution, it can write one into the document. What it should not do, the originalists said, is ask nine unelected judges to do it for them in the guise of interpretation. The argument for that position is developed further in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen.

The Reagan years and the shape of the fight

The debate did not stay in lecture halls. The Meese-Brennan exchange helped define what the administration looked for in judicial nominees, and it set the terms for the confirmation battles that followed.

In 1986 President Reagan elevated William Rehnquist to Chief Justice and nominated Antonin Scalia to the Court. Scalia was confirmed that September. In 1987 came the nomination of Robert Bork, whose writing on the Constitution made him the best-known academic advocate of the approach. The Senate rejected him after hearings that turned into something closer to a national campaign. For the story of that fight, see The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign. Whatever one thinks of the outcome, the Bork hearings showed that the argument Meese and Brennan had begun was no longer academic. Judicial philosophy had become a confirmation issue.

It is worth pausing on how unusual it was for a method to become the subject of national politics. After 1985, senators asked nominees how they read the Constitution before they asked how they would vote. That change is Meese's lasting legacy, and Brennan's too, since both men insisted that method matters.

How the Court's arguments look today

Forty years on, you can see both sides of the 1985 debate in the Court's opinions, in recognizably modern form.

The originalist side. In District of Columbia v. Heller (2008), Justice Scalia's majority opinion read the Second Amendment through its text and founding-era history. In New York State Rifle & Pistol Association v. Bruen (2022), the Court said that when the text of the Second Amendment covers a person's conduct, the government must justify its regulation by showing it is consistent with the nation's historical tradition of firearm regulation. In Dobbs v. Jackson Women's Health Organization (2022), Justice Alito's majority opinion asked whether the right to abortion was deeply rooted in the nation's history and tradition, and concluded it was not. Each of these opinions asks a historical question and gives a historical answer.

The living-constitution side. The dissenting opinions in those cases show the opposite instinct, which is Brennan's. In Bruen, Justice Breyer's dissent stressed the dangers of guns in public, from mass shootings to road rage killings, and argued that courts, "staffed by lawyers, not historians," are ill suited to rely almost entirely on history. In Dobbs, the joint dissent of Justices Breyer, Sotomayor and Kagan argued that the constitutional tradition is "not captured whole at a single moment," and that liberty must be read in light of the long sweep of history and of later precedent, not frozen at 1868. That is "contemporary ratification" in the language of a later generation.

There is one more change since 1985 that the original combatants might not have predicted. The method debate has become less one-sided in the vocabulary. Many liberal and moderate judges now begin with text and history too, and fights are frequently over which history, how much weight tradition gets, and when later practice counts. In that sense, Meese won a point that Brennan's allies had to accept: the text and its history are where the argument starts. Brennan's side, in turn, keeps the question of principle and consequence alive.

A short note on what neither man claimed. Meese did not say that history decides every case, and Brennan did not say that text is irrelevant. They disagreed about where interpretation ends and invention begins, and about who has authority to decide when the line has been crossed. That is still the argument.

The verdict: did Meese get it right?

I will state a verdict, since half the point of an essay like this is to take one.

Premise one: the Constitution is law, and law has a meaning that exists apart from whoever enforces it. Premise two: the people of the United States are the sovereign, and the document is their instrument. Premise three: the document contains its own procedure for amendment, which shows the people intended change to come through them. Conclusion: a judge who changes the meaning of a clause has taken a power the document assigned elsewhere.

Meese got the conclusion right and the label wrong. "Original intention" was an unlucky phrase, and the movement was right to replace it with "original public meaning." Brennan was right that the record is often incomplete, and wrong that incompleteness licenses the judge to supply the missing content from his own moral vision. When the text and the history run out, the honest thing to say is that the Constitution does not settle the question and the political branches may. That answer is less exciting than a judge who always has an answer. It is also what a government of limited powers looks like.

There is some comedy in all this. Forty years of law review articles have been spent refining the phrase that a single speech introduced, and the people who most enjoy citing it have usually never read the speech. If you want to be the most informed person at the next dinner argument about judges, read the two speeches. They are short, they are civil, and they still sound as if they were given last month.

Why the story matters to an ordinary reader

You do not need a law degree to benefit from knowing this history. Most arguments about judges, in the news and at the kitchen table, are proxies for the 1985 argument. When a commentator says a ruling "turned back the clock," that is Brennan's frame. When a commentator says a ruling "followed the text," that is Meese's. Recognizing which frame is in use lets you ask the right questions: what does the text say, what did it mean when adopted, and, if the answer is unclear, who has the authority to decide?

The Constitution does not settle this debate for us, but it does tell us who the debate is for. The Preamble begins "We the People." The meaning of the document belongs to the people who ratified it, and the power to change it belongs to them as well. For the longer argument about the best objections to originalism and the answers, see Five Serious Objections to Originalism and the Answers That Hold Up, and for the distinction between reading statutes and reading the Constitution, see Textualism and Originalism Are Cousins, Not Twins, and the Difference Matters.

The case in brief

1. On July 9, 1985, Attorney General Edwin Meese told the American Bar Association that judges should follow a "jurisprudence of original intention," giving an old principle a name and a place in national politics.
2. On October 12, 1985, Justice William Brennan answered at Georgetown, arguing that the framers' intent is largely unknowable and that the Constitution's general principles must be applied by each generation.
3. The strongest objection to "original intention" was that intentions are not recoverable, and the movement answered it by shifting to original public meaning, a standard that rests on evidence anyone can check.
4. Brennan's deeper question of legitimacy has its answer in Article V: the living may change the Constitution, but the way to do it is amendment, not interpretation.
5. The Court's recent opinions in Heller, Bruen and Dobbs, and the dissents in them, show both sides of the 1985 exchange still at work.

What you can do: read Article V and the Preamble, then find the full text of both 1985 speeches and judge for yourself which side the document supports.