Foreword

The Constitution of the United States has endured for more than two centuries. And, for most of that history, the Supreme Court has tried—with varying degrees of success—to follow the intent of the Framers and the original meaning of the Constitution. Regrettably, during the Warren and Burger Courts, the so-called living Constitution became ascendant. The history of our foundational charter was no longer deemed relevant. Judges of all stripes would rewrite the Constitution based on “evolving standards” to address contemporary problems. Living Constitutionalism reached its pinnacle in Roe v. Wade (1973), in which a 7-2 Court invented out of thin air a right to abortion.

During the last half-century, however, we have witnessed something of a constitutional revolution—or perhaps it is better called a constitutional restoration. Starting in the late 1970s and early 1980s, jurists like William Rehnquist, Robert Bork, Antonin Scalia, and others pushed back against the living Constitution. At the time, many progressive judges and academics scoffed at the notion that courts should somehow channel the Framers’ original intent. But the power of reason would gain ground, inch by inch and case by case.

In 1985, this process entered a new phase. That year, President Ronald Reagan was sworn in for his second term, and I was honored to be confirmed as the Seventy-Fifth Attorney General. In July of 1985, I delivered a speech to the American Bar Association. I announced that the Department of Justice would press for “a Jurisprudence of Original Intention.” And the DOJ would “endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” Apparently, my remarks struck a nerve.

Three months later, Justice William Brennan, the longtime leader of the Court’s liberal wing, felt compelled to respond. In a speech at Georgetown, Brennan charged that originalism was “little more than arrogance cloaked as humility.” Brennan endorsed living constitutionalism and rejected originalism. He said, “[T]he genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

I felt the need to reply to Justice Brennan. In November 1985, I gave a speech to the District of Columbia chapter of the Federalist Society. In my view, originalism was not difficult to describe. First, where the language of the Constitution is specific, it must be obeyed. Second, where there is a demonstrable consensus among the Framers, it should be followed. And third, where the Constitution has ambiguity, it should be interpreted and applied in a manner so as not to contradict the text. I then laid out the terms of this ongoing discourse between the originalists and the living constitutionalists. I said, “We and our distinguished opponents carry on the old tradition, of free, uninhibited, and vigorous debate.” I concluded, “Out of such arguments come no losers, only truth. It’s the American way. And the Founders wouldn’t want it any other way.”

Over the ensuing four decades, that so-called vigorous debate would unfold in ways that were difficult to anticipate. In 1986, the Court’s originalist core would double. Justice William Rehnquist was elevated to Chief Justice, and Judge Antonin Scalia was confirmed as an associate justice. Both of these jurists were committed to a jurisprudence of originalism. Justice Scalia, in particular, published scholarship defending originalism and delivered that message to law students and lawyers across the country. Regrettably, in 1987, Judge Robert Bork was nominated to the Supreme Court but was not confirmed. Had Bork made it through, the Court would have had three committed originalists. Ultimately, that troika would be established in 1991 with Justice Clarence Thomas’s confirmation.

Throughout the 1990s, under the leadership of Chief Justice Rehnquist, the Court pushed the pause button on the living constitutional jurisprudence that had prevailed for decades. And with the new federalism, the Court identified restraints on the central government’s powers. These changes were incremental but were foundational. The case of United States v. Lopez (1995) imposed the first new limits on Commerce Clause authority in six decades. Printz v. United States (1997) held that Congress could not commandeer state officials to implement federal policies. And United States v. Morrison (2000) found that the federal government could not regulate local crimes like domestic violence. With these decisions, and others, the Court pushed closer to a jurisprudence of originalism.

By the early 2000s, The Heritage Foundation perceived an important relationship between the courts, lawyers, and scholars. In order for courts to write originalist decisions, lawyers had to provide originalist briefing. And in order for lawyers to make originalist arguments, they had to be familiar with originalist scholarship. Admittedly, this task is not always simple. Legal scholarship is often not accessible by practicing attorneys. Thus, the Heritage Guide to the Constitution was born. This volume would include originalist essays about every clause in the Constitution. The essays would be written by leading scholars and practitioners in an easy-to-understand fashion. The Heritage Guide would provide a one-stop resource for lawyers, professors, students, and ordinary citizens to learn about the Constitution.

The first edition of the Heritage Guide was published in 2005. I was honored to chair the Editorial Advisory Board. Matthew Spalding served as the Executive Editor and David Forte was the Senior Editor. The Guide caught on quickly and was used widely. And in time, the Guide would find an increasingly receptive audience for originalist scholarship.

That same year, President George W. Bush nominated John Roberts and Samuel Alito to the Supreme Court. Over the next decade, the Roberts Court would continue to push the Court closer to a jurisprudence of originalism. In the cases of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the Supreme Court restored the Second Amendment to its equal station in the Bill of Rights. And NFIB v. Sebelius (2012), though largely a disappointment with respect to Congress’s commerce and taxing power, still enforced limits on Congress’s spending power. In 2014, Heritage published the second edition of the Guide, again under the leadership of Spalding and Forte. This revised volume accounted for recent judicial decisions, novel legal scholarship, and the expanded expertise of new authors.

During the presidency of Donald Trump, the Supreme Court, and indeed the entire federal judiciary, would take a strong turn toward originalism. Justice Antonin Scalia would be replaced by Justice Neil Gorsuch. Justice Anthony Kennedy would be replaced by Justice Brett Kavanaugh. And Justice Ruth Bader Ginsburg would be replaced by Justice Amy Coney Barrett. For the first time in generations, there was a majority of originalist Justices on the Supreme Court. And that shift in jurisprudence furthered the constitutional restoration. In Dobbs v. Jackson Women’s Health Organization (2022), after five long decades, Roe v. Wade was finally overruled. New York State Rifle & Pistol Association v. Bruen (2022) endorsed a historical approach to interpreting the Second Amendment. And Kennedy v. Bremerton School District (2022) followed a historical approach to interpreting the Establishment Clause. These holdings would have been nearly unimaginable four decades ago when I sparred with Justice Brennan. But with the benefit of hindsight, I submit that Rehnquist, Bork, Scalia, Thomas, and others have won that “vigorous debate.”

The time is now right for a third edition of the Heritage Guide to the Constitution. The project continues under the leadership of Josh Blackman and John G. Malcolm. They are building on the proud legacy of the prior editions. I am honored to serve as the Chairman Emeritus of the advisory board, which includes more than three dozen judges, practitioners, and scholars. I am confident that this volume will serve a new generation of lawyers, professors, students, and ordinary citizens who are deeply committed to the jurisprudence of originalism I spoke about four decades ago.

—Edwin Meese III

Chairman Emeritus, Advisory Board