Meese 1985

Summary

And nowhere else has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation. (6)

What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence of Original Intention. (7)

2023-09-25: Meese 1985

• The judges, the Founders believed, would not fail to regard the Constitution as "fundamental law" and would "regulate their decisions" by it. As the "faithful guardians of the Constitution," the judges were expected to resist any political effort to depart from the literal provisions of the Constitution. The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution. (1) [emphasis added. conclusions "Framers' Intent" assumed from the start.]
• For the Supreme Court is the only national institution that daily grapples with the most fundamental political questions - and defends them with written expositions. [contra-Shadow Docket]
• The judicial process is, at its most fundamental level, a political process. While not a partisan political process, it is political in the truest sense of that word. It is a process wherein public deliberations occur over what constitutes the common good under the terms of a written constitution. (2)
• Federalism
• Specifically [Garcia v. San Antonio Metropolitan Transit Authority], five Justices denied that the Tenth Amendment protects states from federal laws regulating the wages and hours of state or local employees. (3)
• [additionally] Alabama insurance tax on gross premiums preferring in-state companies over out-of-state rivals; new [sic] Hampshire from completely excluding a nonresident from admission to its bar; against any state preference for residents involving the professions or service industries [Supreme Court enforced equal privileges and immunities for all citizens.]
• We need to remember that state and local governments are not inevitably abusive of rights. (4) [Voting Rights Act; Civil Rights Act]
• Criminal Law
• upheld warrantless searches of public school students based on reasonable suspicion that a law or school rule has been violated; upheld the warrantless search of a mobile home; approved on-the-spot detention of a suspect for preliminary questioning and investigation; upholding the warrantless search of sealed packages in a car ... probable cause to believe the vehicle contained contraband; warrantless investigatory stop based on an unsworn flyer ...; endorsed warrantless seizures in the field for the purpose of fin­ gerprinting based on reasonable suspicion of criminal activity; upheld border detentions and warrantless searches by customs officials based on reasonable suspicion of criminal activity. (4)
• ... failure to administer Miranda warnings and the consequent receipt of a confession ordinarily will not taint a second confession after Miranda warnings are received. (4)
• Religion
• ... nullified Shared Time and Community Education programs offered within parochial schools; invalidated a program of secular instruction for low-income students in sectarian schools; states may set aside time in public schools for meditation or reflection so long as the legislation does not stipulate that it be used for voluntary prayer; overturned a state law prohibiting private employees [sic] from discharging an employee for refusing to work on his Sabbath; (5)
• Since then [Gitlow v. New York 1925] a good portion of constitutional adjudication has been aimed at extending the scope of the doctrine of incorporation. (6)
• And nowhere else has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation. (6)
• ... it seems fair to conclude that far too many of the Court's opinions were, on the whole, more policy choices than articulations of constitutional principle. (6)
• What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence of Original Intention. (7)
• The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. A Constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense. (7)
• [Joseph Story:] In construing the Constitution of the United States, we are in the first instance to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole and also viewed in its component parts. [See Brennan]