Stevens Assails Meese on Interpreting Constitution

WASHINGTON —  The debate between the Reagan Administration and members of the Supreme Court widened Friday, with a second justice taking the unusual step of publicly disputing the views of Atty. Gen. Edwin Meese III on how the court should interpret the Constitution.

In a speech, Justice John Paul Stevens took direct issue with Meese’s contention that the court should return to the “original intent” of the framers of the Bill of Rights in ruling on school prayer and other controversial issues.

That view, Stevens said, “overlooks the importance of subsequent events in the development in our law.” He cited in particular constitutional amendments passed after the Civil War that expanded federal authority by abolishing slavery, guaranteeing equal protection of the law and upholding the right of blacks to vote.

The remarks by Stevens, a moderate who was named to the court by President Gerald R. Ford, were rare for a justice in that they repeatedly cited a court critic--an attorney general--by name. They were made before the Federal Bar Assn. in Chicago on Wednesday, but a text of the speech was not released until Friday.

The speech followed public remarks Oct. 12 by Justice William J. Brennan Jr., a member of the liberal wing of the court appointed by President Dwight D. Eisenhower. Brennan also criticized views of the Constitution expressed by Meese and other Administration officials. Without mentioning Meese by name, Brennan said that those advocating a return to the “original intent” of the framers reflected “arrogance cloaked as humility.”

Meese and other Administration officials have been highly critical of what they see as “judicial activism”--a tendency by courts today to fashion the law to suit their own view, rather than the intent of the framers and Congress.

In his speech, Stevens sought to refute Meese’s assertion that the Supreme Court’s recent rulings upholding strict government neutrality toward religion would have struck the nation’s founders as “bizarre.” The court, in a decision last term striking down an Alabama law calling for a “moment of silence” for prayer in public schools, said in a majority opinion by Stevens that the state could not favor religion over non-religion.

“I am not at all sure that men like James Madison, Thomas Jefferson, Benjamin Franklin or the pamphleteer Thomas Paine would have regarded strict neutrality on the part of government between religion and irreligion as ‘bizarre,’ ” Stevens said in the speech.

‘Wall of Separation’

It was Jefferson’s oft-quoted view that the Constitution required a “wall of separation” between church and state. Paine wrote that while he respected the views of religionists, he himself saw nationally organized churches as “human inventions set up to terrify and enslave mankind and monopolize power and profit.”

Stevens directed his remarks to a speech by Meese to the American Bar Assn. in July, in which the attorney general said that the court’s decisions on religion, criminal law and states’ rights reflected “policy decisions” by the justices rather than adherence to established constitutional principles.

Meese criticized as “intellectually shaky” the 60-year-old legal doctrine under which the court has applied the Bill of Rights to the states. The intent of the framers was to restrict those first 10 amendments to the Constitution to the national government, he said. Meese has said since then that he meant only to criticize the doctrine, not to urge that it be overturned.

The attorney general also embraced the view that the framers, in barring government establishment of religion, meant only to prevent the state from favoring one religious faith over another and “not to undermine religion generally.”

Cites Important Changes

Stevens said that Meese’s argument was “somewhat incomplete” because it concentrated on the intent of the men who wrote the Constitution while ignoring important changes in the law since then.

“In particular,” he said, “it overlooks the profound importance of the Civil War and the postwar amendments on the structure of our government, and particularly upon the relationship between the federal government and the separate states.”

Stevens said that the importance of evaluating subsequent developments in the law, along with original intent, was well illustrated in the case of James Madison, one of the framers. As a congressman, Madison opposed creation of a federally chartered national bank because he did not believe the Constitution permitted it.

But 20 years later, Stevens noted, Madison as President signed a bill authorizing such a bank in the wake of a ruling by the Supreme Court allowing such action.

1819 Letter Quoted

The justice quoted from a letter written by Madison in 1819 in which he explained: “It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms and phrases necessarily used in (the Constitution) and that it might require a regular course of practice to . . . settle the meaning of some of them.”

Stevens noted wryly that it was possible that he had “misconstrued” Meese’s remarks and that the attorney general was not rejecting the idea that the First Amendment applied to the states as well as the national government.

“But,” he added, “if there is ambiguity in the message that was conveyed by an articulate contemporary lawyer last July, is it not possible that some uncertainty may attend an effort to identify the precise messages that equally articulate lawyers were attempting to convey almost 200 years ago?”