An activist jurisprudence, one which anchors the Constitution only in the consciences of jurists, is a chameleon jurisprudence, changing color and form in each era.

The Constitution… is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made… the people will have ceased to be their own rulers.

The Court… has improperly set itself up as… a super-legislature … reading into the Constitution words and implications which are not there, and which were never intended to be there… We want a Supreme Court which will do justice under the Constitution – not over it.

SOUNDS LIKE Ed Meese, doesn’t it? Well, the first quotation is the attorney general’s. But the second comes from Thomas Jefferson, the third from Abraham Lincoln, and the fourth from Franklin D. Roosevelt. When Meese assails government by judiciary, he is in good company.

Meese has denounced major Supreme Court rulings of the past 60 years and called for judges to look to "the original meaning of constitutional provisions" as "the only reliable guide for judgment." No attorney general in the past four decades has set out so deliberately to reduce the power of the judiciary or to screen the ideological credentials of new appointees.

Champions of liberal judicial activism have launched a ferocious counterattack. Justices William J. Brennan Jr. and John Paul Stevens retorted with pointed critiques of Meese’s so-called "jurisprudence of original intention." Brennan said it was "arrogance cloaked as humility" for anyone "to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." The real animus of advocates of this "facile historicism" he said, is a "political" agenda hostile to the rights of minorities.

Meese is certainly vulnerable to this sort of attack. He seems less a constitutional philosopher than a constitutional window-shopper, seeking to dress up his conservative political agenda as a principled quest for truth. His notion that judges can answer the hard questions raised by the Constitution without being "tainted by ideological predilection," simply by plugging in the intent of the Framers, is at best simpleminded and at worst disingenuous. When the Framers’ intentions are clear, but contrary to a result Meese wants, he ignores them. While calling for restraint in the exercise of judicial power – especially enforcement of civil liberties – he pushes to aggrandize executive power.

Along the way, he has said some revealing things. "You don’t have many suspects who are innocent of a crime," he told U.S. News & World Report. "That’s contradictory. If a person is innocent of a crime, then he is not a suspect." This from a man who was himself suspected of several federal crimes until a special prosecutor cleared him last year – a man who then billed the government $720,824.49 for his defense lawyers. (He later confessed to a "bad choice of words.")

Meese also assailed as "intellectually shaky" and "constitutionally suspect" the Court’s 60-year-old doctrine that most of the Bill of Rights, originally applicable only to the national government, was applied to the states by the 14th Amendment. Eminent Supreme Court justices criticized the doctrine too, but that was decades ago. When a Supreme Court ruling has "been affirmed and reaffirmed through a course of years," Lincoln said in 1857, "it then might be, perhaps would be, factious, nay even revolutionary, not to acquiesce in it as a precedent."

Nevertheless, the standard liberal retort to Meese is superficial. It caricatures his position as more extreme than it is. It ignores the long and honorable history of political attacks on judicial usurpation of power. Most important, its scorn for the "original intention" approach begs the question of where – if not from those who wrote and ratified the Constitution and its amendments – unelected judges get a mandate to override the will of the political majority by striking down democratically enacted laws.

For all his fumbling, Meese has spotlighted some of the real problems with the freewheeling judicial activism sometimes practiced by people like Brennan. Among these is a tendency to "find" in the Constitution rights (such as abortion rights) and social policies that can honestly be found neither in the language of the document, nor in the records left by those who wrote it, nor in any broad national consensus that has evolved since then. This is bad constitutional law even when you like the policies, as I sometimes do.

Meese deserves credit for bringing the deepest questions of constitutional law out of the law journals and into the newspapers. He surely has a political motive. But liberals who believe in democracy (anybody out there after two Reagan landslides?) should welcome the debate.

Too often liberals have taken the elitist view that ordinary voters are the natural enemies of civil liberties, and that only judges can be trusted to protect them. It is a shortsighted approach. As Justice Robert Jackson said four decades ago, "Any court which undertakes by its legal processes to enforce civil liberties needs the support of an enlightened and vigorous public opinion." Today most people confine their thinking about the Constitution to whether they like the policies the Court has decreed. The larger question of when courts should displace the ordinary policy-making role of elected officials gets little attention from anyone but law professors. Meese has begun to remind the public that in enforcing constitutional rights, federal judges are by definition restraining majority rule.

Within proper limits this is a noble function. Those who wrote the Constitution and its amendments saw them as bulwarks against oppression of minorities by a tyrannical majority. They specified certain fundamental rights shared by all Americans. They created special protections for minorities, especially blacks. They laid down these principles in majestic generalities meant to have continuing relevance in a changing society – freedom of speech, equal protection of the laws, due process of law. The federal courts – precisely because they are not answerable to the voters – are the logical bodies to enforce these rights against the majority.

Here, however, lies a difficult dilemma to which no wholly satisfactory solution exists. The Constitution being what the judges say it is, how can the judges be prevented from usurping the powers of elected officials and making political decisions? Meese’s admonition to stick to original intent is only a starting point. The Constitution does tell judges to enforce certain broad principles such as "freedom of speech," but if these principles are to be enforced at all in a changing society, judges must supply much of their meaning.

The trouble is that judges of all political stripes have gone beyond applying the Constitution’s principles to new circumstances. They have written their own moral and political values into it, pretending to have found them there. Sometimes they have "interpreted" the Constitution to forbid things explicitly allowed by its language.

TAKE BRENNAN, a hero to liberals – deservedly so – and Meese’s principal foil in the current debate. In his speech belittling "original intention" theorists, Brennan denied writing his own views into the Constitution. "It is, in a very real sense, the community’s interpretation that is sought," he said. "Justices are not platonic guardians appointed to wield authority according to their personal moral predilections."

But he gave these words a hollow ring when he explained why he always votes to strike down death penalty laws. He said they violate "the essential meaning" of the Eighth Amendment’s prohibition against cruel and unusual punishment by denying "the intrinsic worth" of the murderers who are executed. Now, Brennan knows perfectly well that those who wrote that amendment had no intention of banning the death penalty, which was common at the time and was explicitly recognized in the Fifth and 14th Amendments.

So whence comes his mandate for invalidating the death penalty? "I hope to embody a community striving for human dignity for all, although perhaps not yet arrived," he explained. Translation: my moral convictions on this issue are so strong I would override the laws adopted by the people’s elected representatives any way I could. Brennan admitted that most of his fellow countrymen and justices think the death penalty constitutional. As Judge Robert Bork has put it: "The truth is that the judge who looks outside the Constitution looks inside himself and nowhere else."

WELL, what’s so bad about that? If elected officials don’t have the decency to end the death penalty (or antiabortion laws, or minimum-wage laws, or whatever else offends you), why shouldn’t the judges do it?

The most important answer is that judicial legislation erodes democratic self-government. It converts judges into an unelected and illegitimate policy-making elite. Indeed, its more radical exponents evince a deep antipathy for the democratic process. But as Felix Frankfurter said, "Holding democracy in judicial tutelage is not the most promising way to foster disciplined responsibility in a people."

Defenders of judicial activism like to point out the vagueness of the Constitution’s words and the futility of the quest for consensus on original intention. "And even if such a mythical beast could be captured and examined, how relevant would it be to us today?" asks Harvard law professor Laurence Tribe. He dismisses as a dangerous fallacy the notion that judges can be significantly restrained by the Constitution’s text or history. The Supreme Court, he says, "just cannot avoid the painful duty of exercising judgment so as to give concrete meaning to the fluid Constitution."

Well, perhaps. But why can’t the Court do something many law professors barely deign to discuss? When the Constitution’s language and history provide little or no guidance on a subject, why can’t it leave the law-making to legislatures? Those who work so hard to prove that the Constitution cannot supply the values for governance of modern society seem to think it follows that judges must do it, with a little help from their friends in academia. But their argument rebounds against the legitimacy of judicial review itself. Bork poses a question for which they have no good answer: "If the Constitution is not law – law that, with the usual areas of ambiguity around the edges, nevertheless tolerably tells judges what to do and what not to do – . . . what authorizes judges to set at naught the majority judgment of the American people?"

The activist approach of amending the Constitution in the guise of interpreting it goes hand in hand with a certain lack of candor about the enterprise. A judge who acknowledged that his goal was to strike down democratically adopted laws by rewriting the Constitution would risk impeachment. So we hear a lot about "finding" in the Constitution rights that had somehow gone unnoticed for more than a century.

There is no reason to suppose that unelected judges, using theories concocted by unelected law professors, will make better policies over time than elected officials. Nor that they will make more liberal policies. Judicial activism is not a game played only by liberals. Conservative judges rode roughshod over progressive and New Deal legislation for several decades ending about 1937. "Never … can the Supreme Court be said to have for a single hour been representative of anything except the relatively conservative forces of its day," Robert Jackson wrote in 1941.

Franklin Roosevelt changed that, ushering in an era of liberal judicial activism. Now the tables are turning again. Reagan and Meese are filling up the lower federal courts with conservatives and hoping to do the same with the Supreme Court. "I dream of a conservative Supreme Court striking down most federal legislation since the New Deal as unconstitutional," writes conservative columnist Joseph Sobran. Liberals may soon rediscover the virtues of judicial restraint, and find themselves urging a Reaganized judiciary to practice what Meese has been preaching.

BRENNAN and other liberal activist judges deserve the applause they have won for thrusting upon the nation some policies that were also triumphs of constitutional principle. Desegregation is one example. Protection of the rights of poor criminal defendants is another.

But liberal activism has gone to dubious extremes. Take the case of the man who approached a policeman in Denver and said he’d killed someone. The policeman told him about his rights to remain silent and have a lawyer. The man said he understood and proceeded with his confession, leading police to the scene where he said he had killed a 14-year-old girl. The sometime mental patient later told a psychiatrist that the voice of God had ordered him to confess. The Colorado Supreme Court threw out the confession on the ground that it was compelled by mental illness, and therefore involuntary. If he is ever tried, neither the confession nor, presumably, the other evidence ("fruits" of the confession) will be admissible. And he may go free.

Such judicial excesses are giving constitutional rights a bad name. Ed Meese is not alone in his outrage at judges who free criminals on the basis of technical rules that protect only the guilty, especially where they have little to do with deterring police abuse. The more this sort of thing happens, the greater the danger that the considerable public backlash may build to radical reaction.

There will always be cases in which judges must let criminals go free, and must defy public opinion, to vindicate the constitutional rights of innocent and guilty alike. Their ability to do so suffers when they squander the reservoir of goodwill they need for such occasions. "Liberty lies in the hearts of men and women," Learned Hand wrote. "When it dies there, no constitution, no law, no court can save it."

JUDICIAL creation of new constitutional rights can also be mistaken even when much or most of the public approves. The best example is Roe v. Wade, the 1973 decision creating a constitutional right to abortion and striking down all state antiabortion laws. Abortion is one of the toughest moral issues around. If I were a legislator I might vote (with misgivings) to allow free access to abortion in the early stages of pregnancy, as the Supreme Court did. But the Court is not a legislature, and there is no plausible basis in the Constitution for it to take this issue a way from the states, some of which had already legalized abortion before Roe.

Justice Harry Blackmun’s opinion "found" a right to abortion within the vague, general "right to personal privacy." He said these rights were in the Constitution somewhere, though he was not sure where – probably the 14th Amendment’s generalized protection of "liberty," maybe the Ninth Amendment. Blackmun (appointed by Richard Nixon) made no pretense that the Framers of these amendments intended to legalize abortion. History shows clearly that they did not. They were not thinking about abortion at all, although it was a familiar practice, illegal in some states, when the 14th Amendment was adopted. Nor do the words of the Constitution provide a shred of support for the detailed regulations the Court has drafted over time to curb state regulation of abortion.

Right-to-lifers are not the only people who deplore Roe v. Wade. Many liberal scholars – defenders of the pioneering Warren Court decisions so despised by Meese – have said the Burger Court went too far down the road of naked judicial legislation in that case. Among them are Archibald Cox, now retired from Harvard Law School, Dean John Hart Ely of Stanford Law School, and Dean Benno Schmidt of Columbia Law School, soon to be president of Yale. The abortion issue poses an excruciating clash between two moral imperatives: a woman’s right to personal autonomy and protection of the unborn. Why every detail of local, state, and national policy on such a fundamental moral issue should depend on the personal philosophies of five or six judges escapes them, and me.

The disregard for the written Constitution that Roe v. Wade embodies is also a two-edged sword. President Reagan said in his debate with Walter Mondale that an unborn child is a living human being "protected by the Constitution, which guarantees life, liberty, and the pursuit of happiness to all of us." Well, there he goes again, quoting the Declaration of Independence and calling it the Constitution. But he was close enough: the 14th Amendment says no state may "deprive any person of life, liberty, or property, without due process of law." For those who believe a fetus is a "person" and abortion is murder, as Reagan does, it is possible to conclude that judges should strike down any state laws that allow it. Farfetched? Well, what if a state excluded homosexuals or handicapped children from the protection of its murder laws?

NONE OF THIS means Meese’s own approach to constitutional interpretation is adequate. It isn’t. For starters, there is little evidence he has given the subject much thought. Beyond the high-sounding, platitudinous stuff about the Framers in the speeches his aides have written for him, he has had little specific to say about what he thinks their intentions were, or how broadly these intentions should be read. There is enormous room for disagreement here. The most important constitutional phrases, like "equal protection of the laws," are sweeping, vague, and only dimly illuminated by history.

Meese has tiptoed away from some of the few specific things he has said, including his attack on the doctrine that most of the Bill of Rights applies to the states through the 14th Amendment. It appeared in the written text of his July 9 speech to the American Bar Association. For some reason he omitted this point when he read the speech aloud. Moments afterward, reporters bearing tape recorders asked Meese whether he thought the Court had gone too far in applying the Bill of Rights to the states. "No," he responded. "I, well, I think this is something that’s been done in 1925 and since, and so I don’t think, ah, ah, I think, I do not have any particular quarrel at this stage of the game with what the Court has done in the intervening 60 years." Will the real Ed Meese please stand up?

Meese has stuck to his guns in denouncing as "infamous" major decisions upholding the rights of criminal defendants. One of his least favorites isMapp v. Ohio (1961), which extended to the states the "exclusionary rule" barring use of evidence seized in violation of the Fourth Amendment. Meese has said Mapp helps only "the guilty criminal," and has suggested abandoning the exclusionary rule in state and federal cases alike.

But Meese seems to have forgotten Boyd v. U.S., which Justice Louis Brandeis said "will be remembered as long as civil liberty lives in the United States." The 1886 decision was the Supreme Court’s first major Fourth and Fifth Amendment ruling. Unlike modern rulings, it was explicitly based on a detailed study of the Framers’ intentions. Boyd held that the Framers intended the Fourth Amendment’s ban on "unreasonable searches and seizures" to prohibit all governmental attempts to obtain a person’s private papers or other property – even by warrant or subpoena – and to forbid their use as evidence to convict him. Innocence or guilt was irrelevant to this determination. The Court’s confident assertion that this was the Framers’ intention was based on a reading of their natural rights philosophy, on 18th-century case law, and on the fury at sweeping British searches that helped fuel the American Revolution.

If Boyd were the law today, it would place far greater restrictions on police than any imposed by the Warren Court, which Meese has denounced for its "expansive civil libertarianism." The modern Court, unwilling to restrict official power so severely, has abandoned this broad vision. Its use of the exclusionary rule as a limited deterrent to police abuses is a pale remnant of the expansive rights the Court saw in the Fourth Amendment 99 years ago.

Meese’s contention that the exclusionary rule helps only guilty criminals is demonstrably false. Of course, exclusion of improperly obtained but reliable evidence helps only the guilty in the immediate case at hand. But if officials knew they could search everyone indiscriminately and use any evidence they found, a lot of innocent people would be victims of illegal searches. The only way to take the profit out of police abuses is to bar use of the evidence found. This means letting some guilty criminals go free. It is one thing to say this is too high a price to pay in cases in which police inadvertently cross the line between marginally legal and marginally illegal searches. It is quite another to let officials use any and all illegally obtained evidence, as Meese would.

Meese’s selectiveness in applying original intention is not limited to criminal law issues. If he really believed the Framers’ specific intentions are "the only reliable guide for judgment," he would have to condemn Brown v. Board, of Education, the landmark 1954 decision desegregating public schools. Anybody who did that today would be assailed as a segregationist crank. Meese recently applauded Brown as’ a case study in finding the original intention of the post-Civil War 14th Amendment. "The Supreme Court in that case was not giving new life to old words, or adapting a ëliving,’ ëflexible’ Constitution to new reality," he declared. "It was restoring the original principle of the Constitution."

That’s nice, but it’s not true. The Congress that wrote the amendment had no intention of outlawing segregation, as Raoul Berger, Alexander Bickel, and others have demonstrated. The same Congress segregated its own Senate gallery and the District of Columbia schools, and rejected various desegregation bills. What the Court saw nearly 90 years later was that state-enforced segregation, relegating blacks to inferior schools and other facilities, had made a mockery of the 14th Amendment’s central purpose: to put blacks and whites on an equal footing before the law. So the Court gave "new life to old words," to use Meese’s mocking phrase, and threw out segregation.

THE SAME CONGRESS that drafted the 14th Amendment also passed some special welfare programs for recently freed slaves and other blacks in the South. These were, in modern parlance, affirmative action programs involving racial preferences for blacks – sort of like the government hiring quotas that Meese has declared in violation of the 14th Amendment. Congress specifically excluded whites from some of these programs. Among them were federally funded, racially segregated schools for blacks only – a single program that contradicts the Meese view of the 14th Amendment’s original intention on segregation and affirmative action alike. These programs were passed over the Meese-like objections that they discriminated against whites and included some blacks who were not personally victims of discrimination. But Meese’s Justice Department, checking its slogans about judicial restraint at the door, has urged the Supreme Court to strike down every local, state, and federal government affirmative action program in the nation that prefers black employees over whites. Right or wrong, Meese’s position on affirmative action is at war with his preachings about strict adherence to original intention.

The same is true of his position on a lot of issues. Many of the powers that his Justice Department exercises daily – reaching into every community with its wiretaps, its informers, its subpoenas – would have horrified the Fram-ers. They feared centralized power more than anything but anarchy. They sought to limit severely the national government’s law enforcement powers, leaving to state and local authorities jurisdiction over the all but genuinely interstate crimes.

What would Meese do about the strong historical evidence that the Framers intended to deny the government the power to issue paper money, which they saw as a threat to propertied interests? What about their intent to bar the president from launching military expeditions without congressional approval, except to repel attacks on United States territory?

And what about the First Amendment’s religion clauses, as expounded by Joseph Story, a 19th-century justice whom Meese sometimes quotes on original intention? "The real object," Story said, "was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects." Meese buys the "infidels" part when he says the Framers would have found "bizarre" the notion that government may not favor religion over nonreligion. He ignores the rest, of course. Any official who argued today that only Christians are protected by the religion clauses would be drummed out of office, and properly so.

The broader point is that sticking to the Framers’ immediate goals as closely as Meese sometimes suggests is neither possible nor desirable. If Brown v. Board of Education was right, and it was, then a "jurisprudence of original intention" worthy of respect cannot mean enforcing constitutional rights only in the specific ways envisioned by the Framers. Such an approach would doom these rights to wither with the passage of time. The Framers’ central purpose of preventing abuse of minorities would be strangled by narrow-minded attention to their more immediate concerns. As for the possibility of updating the Constitution by the formal amendment process, this takes a two-thirds majority in each house of Congress and approval by three-fourths of the states. Such majorities could rarely be mustered to deal with new threats to the rights of minorities.

NEW technologies such as wiretapping threaten liberties the Framers enshrined in ways that they could not have imagined. And the changing nature of society poses threats that the Framers did not foresee to the constitutional principles they established. Take libel law. Million-dollar libel suits by public officials were not prevalent in the 18th century, and it is fairly clear that the Framers did not intend the First Amendment (or the 14th) to limit private libel suits as the modern Court has done. But they did intend to protect uninhibited, robust, and wide open debate about public affairs. And it seems to me proper for the Supreme Court to effectuate that broad purpose, in this litigious era, by imposing some curbs on libel suits.

Am I slipping into the kind of judicial revision of the Constitution I just rejected? I don’t think so. There is a middle ground between narrow adherence to original intention and freewheeling judicial legislation. As Chief Justice John Marshall said in a famous 1819 decision, the Constitution is not a code of "immutable rules," but rather the "great outlines" of a system intended "to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." But it is for elected officials, as he said, to do most of the adapting. Judges should invalidate democratically enacted laws only, in John Ely’s words, "in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution."

THIS APPROACH will often set only loose outer boundaries around the Court’s options in deciding specific issues. It requires judges in close cases to draw fine lines. And it does not pretend to purge their moral and political convictions entirely from the process. But its recognition that the Constitution imposes some bounds on judicial power – limits fleshed out more clearly by the accumulation of precedent – would channel the growth of the law in a more principled and therefore more legitimate direction.

At the outer limits of legitimacy are those cases in which the justices read into vague constitutional phrases like "due process" an emerging social consensus that seems contrary to the particular intentions of the Framers. This goes beyond applying old principles to new circumstances, and gets into tinkering with the principles or creating new ones. I think the Supreme Court should do it in a few rare cases, nudging society to progress in the common law tradition of gradually evolving principles against a background of continuity.

Brown V. Board of Education was such a case. It struck at the heart of a great evil. Though departing from the particular plans of the Framers, it honored their deeper, nobler intentions. And though overriding the democratic process, it crystallized an emerging national consensus that legally compelled racial segregation was unacceptable in modern America. That is the difference between judicial activism and judicial statesmanship, and why most of the fiercest critics of judicial activism don’t dare criticize Brown today.

But the Court should attempt to lead only where the nation is prepared to follow. The creation of new constitutional values is a slippery slope, down which the courts should not travel too far too fast. At the bottom lies the kind of uninhibited and essentially lawless judicial legislation that Bork has justly assailed. The urge to do good is powerful, the urge to court greatness intoxicating. Judges should resist the sincere, but arrogant, assumption that they know best. Brandeis’s words, aimed at Ed Meese’s ideological predecessors, should also be heeded by his ideological adversaries: "The greatest danger to liberty is the insidious encroachment by men of zeal, well-meaning but without understanding."

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