Preface

“We the people” adopted the Constitution, and it is important that all Americans understand what our founding document means. Since the publication of the first edition twenty years ago, the Heritage Guide to the Constitution has been an invaluable resource for judges, lawyers, and the public at large. It marries scholarly depth and sophistication with prose that is readily accessible. The new third edition of the Guide retains the virtues of its predecessors while deepening the discussion of how constitutional provisions were understood when they were adopted.

This new focus reflects a profound and beneficial change in constitutional interpretation that has taken place over the past half-century. In 1975—which, by chance, was the year when I graduated from law school—constitutional interpretation was in disarray. During the 1960s and early 1970s, groundbreaking Supreme Court decisions had elicited sharp debate, and both supporters and critics of those decisions were hard-pressed to defend their positions on grounds other than approval or disapproval of the results that the Court had reached. A response based on neutral principles required a theory of constitutional interpretation, and neither side had a crisp candidate readily at hand.

For defenders of the Court’s work, a fundamental problem was that the Court’s opinions had not articulated and consistently applied any neutral theory. Decisions had relied willy-nilly on the text of the constitutional provision at issue, its history, the structure of the Constitution, precedent, and what amounted more or less to a view about sound public policy. Why a particular recipe was selected for each case had not been explained.

Nor had the Court attempted to reconcile its new work with the broad consensus about the proper role of federal courts that had been forged during the New Deal era. That established consensus was that unelected judges should rarely if ever second-guess the judgment of legislators when the constitutionality of economic and social legislation was challenged. To do otherwise was seen as contrary to our nation’s fundamental commitment to democratic self-government. The most academically minded jurists of the 1950s and 1960s, most notably Justice Felix Frankfurter and Judge Learned Hand, thought that a similar stance should be taken in cases involving provisions of the Bill of Rights. But the majority, confident in its views about sound public policy and the arc of history, brushed that concern aside. Thus, when popular opinion turned sharply against the results that were attributed to some of the Court’s decisions, defenders were set back on their heels. This was most apparent with respect to decisions that were seen as hampering law enforcement. Beginning in the 1960s, the rate of violent crime climbed rapidly, and the Court was blamed.

Critics sought to change the direction of the Court’s work, but they also struggled to find a neutral theory. In the 1968 presidential campaign, Richard Nixon promised to do something about the crime problem and to appoint Supreme Court justices who were “strict constructionists.” But what did that term mean? Adhering strictly to the literal meaning of the Constitution’s text? Strictly refusing to modify existing precedents? President Nixon appointed four Supreme Court justices during his five years in office. All but one of them joined the decision in Roe v. Wade (1973), which did not strictly follow anything other than the majority’s view on what represented wise public policy.

Opponents of the work of the Warren Court (and to some extent the Burger Court as well) charged that the justices had become “activists,” were behaving like legislators, and should have exercised “judicial self-restraint.” These were often valid criticisms, but these phrases left important questions unanswered. Surely there are occasions when judges should be stirred into action. So what is the test for determining whether such an occasion is at hand?

What we now call “originalism” arose to fill this void, and three men led the charge. If we can envision a Mt. Rushmore of originalism, the three visages we would see carved in stone are those of Robert Bork, Edwin Meese III, and Antonin Scalia.

In 1972, when I entered Yale Law School, Robert Bork was a member of the faculty and a renowned antitrust scholar who was just turning to constitutional law. As of that date, his sole contribution in that field was a 1971 article in the Indiana Law Journal that bore the modest title “Neutral Principles and Some First Amendment Problems.” In the field of antitrust, Professor Bork championed an overarching theory, namely, that the antitrust laws should be interpreted to promote economic efficiency, and he brought this same theoretical bent to constitutional law. As most fully developed in his best-selling books The Tempting of America and Slouching Towards Gomorrah, he argued vigorously that judges should heed what the text of the Constitution would have been understood to mean at the time of adoption. Although his nomination to the Supreme Court failed, Robert Bork paved the way for the eventual rise of what we now call originalism.

The second key originalist was Edwin Meese III, who served as Attorney General from 1985 to 1988. Under General Meese’s leadership, the Department of Justice sought to make up for the legal academy’s disinterest in (and indeed, hostility toward) originalism. Justice Department attorneys enthusiastically studied, discussed, and wrote monographs on the original meaning of key constitutional provisions. And in a series of highly publicized speeches, General Meese took the originalist case to the general public. His effective speeches prompted an unusual response by Justice William J. Brennan, Jr., who charged that originalism was “little more than arrogance clothed as humility.” General Meese was undeterred, and the growing influence of originalism was not halted.

The final pivotal originalist was Justice Antonin Scalia. The brilliant and engaging opinions he wrote during his thirty years on the Supreme Court provided a model that will guide originalist judges for many years to come.

Since these three men laid the foundations for originalism, other jurists (including my colleague Clarence Thomas) and several generations of scholars have worked to deepen the foundations of originalism and explore the original meaning of our founding document. Support for originalism has grown—to such an extent that there is now sometimes as much disagreement between originalists of different stripes as there is between originalists and non-originalists.

In the 1980s, when I was an Assistant to the Solicitor General, I drafted a brief on a Sixth Amendment Confrontation Clause question that relied heavily on the original understanding of that provision. The deputy who reviewed the draft advised me that a different pitch would be more effective with the Court, which at the time did not include any committed originalists. As a matter of litigation strategy, he was probably correct. The brief was revised, and the Court’s opinion was based on non-originalist grounds.

Today, no savvy attorney would disregard original meaning in briefing or arguing an unsettled constitutional question in federal court. For attorneys involved in such cases—and for all other Americans who want to understand what our Constitution means—the new edition of the Heritage Guide is a great place to start.

—Justice Samuel A. Alito, Jr.

U.S. Supreme Court