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As we celebrate the life of Ronald Reagan, the legal community can reflect proudly on his far-reaching legacy in the law, especially the revival of a principled constitutionalism. Reagan’s achievements continue to resonate (as intellectual historians will no doubt conclude) because they were firmly grounded in his commitment to the philosophy of the Founders and the written Constitution they bequeathed to us. According to Professor Matthew Franck, Reagan talked about the Founders and their design for government far more than any of the preceding nine presidents and, by some measures, more than all of them combined. Renewed interest in the Founding Fathers is evident today, but it was sadly rare in intellectual circles from the New Deal era through the 1970s, particularly in the law, which was dominated by the “legal realist” school and its nontextualist offshoots. Reagan did not invoke the Founders just as rhetoric. His overarching philosophy of government, based on the teachings of the American Founding, won a decisive mandate in the 1980 election and included recognition of the limited and enumerated nature of federal power; this philosophy rightly had a profound impact on the law. Perhaps Reagan’s most important achievement was to revive the jurisprudence of original understanding. The governing orthodoxy prior to his presidency was the “living constitution” approach that tended to support judicial activism and highly creative legal theories in academia. To paraphrase Franck, this theory paradoxically holds that the Constitution and laws have no settled meaning, but that the Supreme Court has a settled power to ascribe such meaning to the Constitution and laws as it sees fit. This approach certainly made judging and legal writing more freewheeling, but it conflicted with the American theory of a written Constitution that was supreme. Reagan challenged the prevailing activist approach on such issues as racial discrimination through preferences and quotas, unenumerated constitutional “rights,” federalism, exaggerated expansions of the Bill of Rights and the separation of powers. He did so in speeches, interviews, proclamations, executive orders and perhaps most importantly in superb appointments to the federal judiciary. The Reagan administration’s careful vetting for all judicial appointments was partly the result of Reagan’s experience with activist California and federal judges who thwarted his gubernatorial initiatives. In the White House, Reagan continued the careful review process for judges he had initiated in California. Professors Antonin Scalia, Ralph Winter, Robert Bork, J. Harvey Wilkinson and Stephen Williams were among the academics he appointed to the circuit courts who shared his approach to constitutional interpretation. Other appointments from his administration, including Douglas Ginsburg, Alex Kozinski, Kenneth Starr and Danny Boggs, helped turn the tide of activism in many federal circuits. Today, the originalist approach to constitutional interpretation is still gaining ground. Following Reagan’s lead, it was my responsibility to help revive a jurisprudence of original intent through an exchange of speeches I had with Justice William Brennan in 1985 and 1986. I noted that while the Supreme Court has the duty to apply the Constitution in deciding cases and has great moral force when it does its job faithfully, there is still a difference between the Constitution and constitutional law. The Constitution’s true meaning, based on its original understanding, should be the sole basis for court rulings. My speeches would not have received nearly so much attention if Brennan had not challenged them, thus drawing helpful scholarship to our position. The extent to which the originalist approach is now gaining in the federal courts and has a strong following in the legal academy is shown partly by the perceived need of activists to dress up their writings with originalist (or originalist-sounding) arguments. Federalism Reagan paid particular attention to restoring the checks and balances of the structural Constitution, including principles of federalism and separation of powers. His Federalism Task Force developed several proposals to re-limit the national government to its enumerated powers, culminating with Federalism Executive Order 12612 in 1987, which required executive agencies to undertake federalism assessments before taking major actions, and to consider ways to avoid pre-empting state law whenever possible. Reagan also did much to restore the prerogatives of the presidency and reinvigorate the separation of powers. He did this through court victories, including invalidating legislative vetoes and upholding the president’s foreign affairs powers, and through executive actions involving executive privilege and by issuing bill-signing remarks directing agencies to disregard unconstitutional provisions of new laws. Reagan’s legacy today also includes a generation of lawyers, public officials, academics and recent judges who were influenced by these changes in legal thinking. These ideas could not be sustained unless they were true, but they probably would not have become established-no matter how true-without Reagan’s leadership. Edwin Meese III is the Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation. He served Governor and President Reagan, including as counselor to the president from 1981 to 1985 and as attorney general from 1985 to 1988.

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