A Dissent From Edwin Meese

Occasionally, will use this space to let readers respond in detail to a story involving complex issues.

In his highly tendentious article, "Radicals in Conservative Garb" (ESSAY, Aug. 11), Ezra Bowen has wrenched quotations from context and twisted history to attack the importance I have attributed to recovering a jurisprudence of original constitutional meaning. In so doing, TIME has overlooked the central issue -- whether a judge or Justice should interpret the Constitution according to its text, structure and history, or may a judge or Justice set these aside in order to effect his own vision of the good society. The debate is not one of strict vs. loose construction; it is a debate over interpretation vs. noninterpretation. Your article sides with those who believe constitutional law is better found in evolving notions of contemporary morality than in what the Constitution itself says.

Your essay seeks support for its views in Chief Justice John Marshall's justly celebrated opinion in McCulloch vs. Maryland (1810): "We must never forget that this is a constitution we are expounding . . . intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." However, this quotation, achieved by melding two different . sentences eight pages apart, misrepresents Chief Justice Marshall's view. Marshall was not saying that courts may invent new constitutional values in order to keep pace with the times, but rather that Congress may "avail itself of experience, exercise its reason, and accommodate its legislation to circumstances."

Judges must earn their money by making difficult judgments at times, inferring the meaning of the constitutional text from its structure and history. Sometimes contemporary problems not specifically mentioned in the Constitution must be addressed through the reasonable extension of principles embedded within the Constitution. But on issues where the meaning of the Constitution cannot be inferred in a neutral and principled way, it is the more representative branches of the Government that should decide.

This all leads me to raise a fundamental question. If the meaning of the Constitution and the laws made under it cannot be arrived at by interpretation, what possible justification can you find under our republican form of government for permitting an unelected group of officials to say what the law is? In other words, the very legitimacy of judicial review under the Constitution depends upon our written Constitution's being presumed to have a definite and discernible meaning. That is what limited, constitutional government is all about.

Edwin Meese III

Attorney General of the U.S.

Washington