LIBERALS SHOULD be cheering Attorney General Edwin Meese III instead of attacking him in the current fracas over Supreme Court doctrine.
Meese has been outraging liberal opponents, including Supreme Court justices, with his arguments that the court should decide cases in the light of the original intent of the Constitution's framers.
But his opponents should note the similarity of Meese's statements to a nationwide radio tirade by Franklin D. Roosevelt in the 1930s, indicting the justices for flagrant usurpation of legislative power. Roosevelt said: "I want -- as all Americans want -- an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written -- that will refuse to amend the Constitution by the arbitrary exercise of judicial power -- amendment by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts universally recognized."
It is Roosevelt's New Deal and the liberals' later Great Society bureaucracies that will be endangered if Meese's arguments for original intent do not prevail. Over 250 politically conservative judges have been appointed by President Reagan. If a non-intent standard for interpreting the constitution -- such as fairness, wisdom or compassion, all of which would vary from judge to judge -- carried the day, the newly conservative federal bench would be empowered to dismantle liberal programs which have been in place for decades.
Admittedly, in the last four decades or so, conservative political causes have been the primary victims in high court decisions dealing with school prayer, tuition reimbursement, abortion, one-person-one-vote, the death penalty, rights of criminal suspects, libel and gender differentiation.
But Meese's detractors tend to forget that prior to 1937, Supreme Court departures from an intent standard of constitutional interpretation predominantly frustrated liberal political causes. In the early 1930s, approximately 1,600 federal court injunctions aimed at New Deal statutes accomplished what the Republican Party could not achieve through the electoral polls.
By the time of the New Deal this court usurpation of legislation function had been going on for more than half a century, much of it centering on an issue that has concerned the most recent assailants of the Supreme Court -- the 14th Amendment.
The amendment was adopted in 1868 to prohibit racial discrimination in civil rights. It conferred citizenship on blacks, and forbade states from depriving any person of "life, liberty, or property, without due process of law" or of "equal protection of the laws."
The Supreme Court declared in 1873 that the sole "pervading purpose" of the amendment was "the freedom of the slave race." But within a decade, the court began flouting the amendment's intent to block rivers of social, civil rights and economic legislation championed by progressive or liberal politicians. In 1883, for instance, the court held unconstitutional the Civil Rights Act of 1875 prohibiting racial discrimination in public places, such as inns and theaters. In words mocking to blacks, Justice Bradley maintained that at some point laws must cease to favor Negroes, as if a ban on discrimination was a form of favoritism.
In 1897, the court denounced as a violation of constitutional due process a state law prohibiting direct contracting with an out-of-state insurance company for coverage of in-state property (Allgeyer v. Louisiana).
This bold and unwarranted interpretation of the due process clause marked the beginning of a 40-year assault on legislation cherished by liberal political groups that regulated product or labor markets.
Thus, the Court held unconstitutional a maximum 60-hour work week for bakery employees, minimum wage laws for women or children, child-labor laws, laws prohibiting employment contracts denying an employe freedom to join a union, laws compelling arbitration of labor-management disputes and laws curtailing the use of court injunctions to aid employers embroiled in strikes. Liberal causes, in short, took a beating by a court that ignored the framers' intent that the justices should generally bow to the Congress and the states, which were endowed with responsibility for adjusting the nation's legal network in light of unforeseen or changed circumstances.
Indeed, by 1927 the court was invoking the Constitution to overturn a state law prohibiting ticket agencies from selling theater tickets at prices in excess of 50 cents over the price printed on the ticket.
In summary, a Supreme Court unconstrained by constitutional intent is a loose cannon on the political deck.
The Founding Fathers intended to curb the power of the Supreme Court to interpret the Constitution -- this is the first item of intent which we should keep in mind. As James Madison taught: "If the sense in which the Constitution was accepted and ratified by the nation. . . be not the guide in it, there can be no security . . . for a faithful exercise of its powers." Likewise, we can and should examine the intent of the framers of amendments to the Constitution. Otherwise, our constitional architects recognized, the court would fasten its concepts of wise public policy on the nation in the guise of creative constitutional decrees and thus undermine the right of the people to govern themselves through elected executives and legislatures.
Charges that Meese's devotion to judicial restraint is simply a camouflage for furthering a conservative agenda are woefully misconceived. These charges seem based on the the idea that Meese cannot believe in judicial restraint if he urges the overturning of earlier rulings. But judicial restraint does not mean reverence for judicial precedent if the precedent was wrongly decided and represents unconstitutional usurpation of policy-making by the Supreme Court.