Joseph Story, professor of law at Harvard and associate justice of the U.S. Supreme Court, was a leading constitutional scholar of the nineteenth century. In Commentaries on the Constitution (1833), he advocated interpreting the Constitution according to its plain meaning and the intent of its authors. Story emphasized that the Constitution was deliberately written so as to be understood by the common man: “I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers, by ingenious subtleties and learned doubts. . . . Upon subjects of government; it has always appeared to me that metaphysical refinements are out of place. A constitution of government is addressed to the common sense of the people, and never was designed for trials of logical skill, or visionary speculation.”  (Footnote #25)

Compare Story’s eloquent, yet humble, clear thinking with the aggressive positivism of Charles Hughes, New York governor and chief justice of the U.S. Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is.” (Footnote #26)

In 1985, to illuminate the destructiveness of this view, Edwin Meese, attorney general under then-president Ronald Reagan, delivered a speech to the American Bar Association in which he declared:

It was not long ago when constitutional interpretation was understood to move between the poles of “strict construction” and “loose construction.” Today, it is argued that constitutional interpretation moves between “interpretive review” and “non-interpretive review.” As one observer has pointed out, under the old system the question was how to read the Constitution; under the new approach, the question is whether to read the Constitution. . . . The result is that some judges and academics feel free (to borrow the language of the great New York jurist, Chancellor James Kent) to “roam at large in the trackless fields of their own imaginations.”

Footnotes:

25 Joseph Story, Commentaries on the Constitution of the United States, 3rd ed. (Boston, 1858), 283, 400.

26 Craig R. Ducat and Harold W. Chase, Constitutional Interpretation: Powers of Government (West Publishing Company, 1992), 3; quoting Charles Evans Hughes.

27 Edwin Meese III, address to American Bar Association, 1985; adapted in “Toward a Jurisprudence of Original Intention,” Benchmark, vol. 2, no. 1, January-February 1986, 1–10, at 6.