Supreme Court Justice John Paul Stevens has delivered an unusually direct rebuttal to Reagan administration criticisms of the court, saying Attorney General Edwin Meese III displayed an "incomplete" understanding of the law and history in his recent attacks on its rulings.
Specifically, Stevens rejected Meese's contention that the now settled principle obligating the states to observe the Bill of Rights was based on an "intellectually shaky foundation" and was "constitutionally suspect." The justice said Meese's position ignores the impact of the Civil War and subsequent constitutional amendments, as well as the past 60 years of Supreme Court precedents.
Stevens also took issue with Meese's argument, made in a July speech to the American Bar Association, that the literal words of the Constitution and its authors' intentions are the "only reliable guide" for judges to follow in interpreting the Constitution.
Stevens made his remarks Wednesday to the Federal Bar Association in Chicago. The Supreme Court yesterday released a text of the speech.
Stevens is the second justice this month to rebut administration criticism of the court for judicial activism. The court's senior liberal, Justice William J. Brennan Jr., two weeks ago responded in general to conservative critics. But Brennan did not specifically mention Meese or the administration.
In contrast, Stevens named Meese and quoted at length from Meese's July speech.
Legal scholars yesterday called the Meese-Stevens exchange "highly unusual" if not unprecedented. Walter Dellinger, a Duke University law professor, said he could not recall a similarly direct attack on an attorney general by a member of the court.
"Even during the years of direct court criticism by President Richard M. Nixon and Attorney General John Mitchell," Dellinger said, "no justices responded directly to their remarks."
Meese, in his July speech, said recent high court rulings, especially one written by Stevens striking down an Alabama law for a "moment of silence" in public schools, "would have struck the Founding Fathers as somewhat bizarre."
"The term 'founding generation,' " Stevens said, "describes a rather broad and diverse class. It included apostles of intolerance as well as tolerance, advocates of differing points of view in religion as well as politics."
Stevens called Meese's views "incomplete," because he focuses on the original intention of the framers of the Bill of Rights and "overlooks the importance of subsequent events in the development of our law."
Stevens, a Republican moderate appointed by President Gerald R. Ford in 1976, said Meese "in particular . . . overlooks the profound importance of the Civil War . . . on the structure or our government.
The Bill of Rights, the first 10 amendments to the Constitution, explicitly prohibit the federal government from violating basic civil liberties -- such as freedom of speech, freedom of religion, the right to counsel and to fair trial.
Meese said in his speech that the Bill of Rights, when drafted, only applied to the federal government, not to the states. Meese said the court has used the post-Civil War 14th Amendment, guaranteeing due process and equal protection, to expand federal power.
"Nowhere else has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation," he said.
Stevens, in response, said Meese "failed to mention the fact that no justice who has sat on the Supreme Court during the past 60 years has questioned the proposition" that the 14th Amendment made the First Amendment's provisions applicable to the states.
Justice Department spokesman Terry Eastland said yesterday that Meese had not seen the text of Stevens' speech and could not respond directly.
"But certainly everyone interested in the role of the courts and how the courts interpret the Constitution will welcome any of the federal judges and justices of the Supreme Court in the discussion of this issue," Eastland said. "As I read Justice Stevens, he is saying that it is impossible to discern the intent of the framers and apply it today. Then the question which must be asked is what does guide a judge in the interpretation of the Constitution? The difficulty today is that judges are too often guided by their own ideas about the Constitution rather than the Constitution as it was written."