After months of speeches by administration officials criticizing recent Supreme Court decisions and urging a return to "the intentions of the Framers," the court's senior jurist has responded. Justice William Brennan, the oldest member of the court and perhaps its most liberal, gave a speech last weekend at Georgetown University. Its text neither named nor quoted the officials whose arguments it was intended to counter, but Attorney General Edwin Meese was clearly high among them.
The attorney general's assault on the court began in July when, in an address to the American Bar Association, he characterized the court's rulings in religion cases as "bizarre." His campaign continued with an August statement denigrating the rights of persons accus of crime and suggesting that the Miranda rule is unnecessary and troublesome. His latest pronouncement, made in a magazine interview this month, was the astonishingly unlawyer-like observation that "you don't have many criminal suspects who are innocent of a crime." The theme running through all these statements is that if only the court had interpreted the Constitution exactly as the Founding Fathers had intended back in 1789 we wouldn't be bothered with all these pesky rights (for the accused) and freedoms (from state-sponsored religion) that engender so much controversy.
Justice Brennan calls that attitude "arrogance cloaked as humility." It's ridiculous, he says, "to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." Rather, it is the responsibility of the justices to read the Constitution as 20th-century Americans, keeping in mind the substantive value choices made by the Framers and applying them to modern circumstances.
It is the glory of the U.S. Constitution not only that it provides a permanent framework for stable government and individual rights but that it has been, for almost 200 years, flexible enough to accommodate technological, economic and social change. The attorney general may wish to return to the days of state-sponsored prayer in the public schools, coerced confessions, unreasonable searches and criminal defendants without legal assistance. But there is nothing in the Constitution that impels the conclusion that the Framers would have taken us down that road. The principles -- no established religion, no unreasonable search and seizure, right to counsel -- are clearly stated in the Bill of Rights, and the modern Supreme Court has not only the right but also the duty to interpret those clauses for the United States of the '80s. That's not "judicial activism," it's common sense.