Amen!  Clarence Thomas is a self-righteous jerk as are so many originalists.  If it were so objectively easy to just interpret  the Constitution as the framers wrote it we wouldn't need a Supreme Court now would we?  

As if the intellectual dishonesty of so-called "originalism" hadn't already been firmly established, this article nails it.  It's become fashionable on the right to invoke long-discredited precedents like Plessy and Dred Scott (see Bush's 2004 acceptance speech) as kind of a cost-free way to demonstrate one's supposed commitment to racial justice while advocating policies that undermine the principle of equal justice under law.  For the originalists and textualists to remain consistent, they would have to admit that both slavery and segregation were consistent with the intent of the framers.  (Likewise, the so called "Unitary Executive" theory of presidential power favored by conservatives is thoroughly at odds with the plain meaning of Article II.)  It's time that the public recognized the Republican rhetoric on Constitutional interpretation for the sham that it is - a naked effort to recast Constitutional doctrine to reflect the political preferences of movement conservatism.

Thanks waynejm.  You said it even better than Sunnstein.

Well, I would argue that it is _possible_ to argue meaningfully from "original intent." Abraham Lincoln's understanding of slavery within our constitutional system was informed by just such an understanding: Lincoln looked at what the framers, individually and as a class, actually did when they had the chance to take actions in government after drafting and ratifying the Constitution and later amendments.

I am not persuaded that we _should_ give much weight to original intent, but if we carefully follow Lincoln's methodology we _could_ do so. And in the case of Thomas, he is simply wrong about Harlan's decision in Plessy. The weight of actual practice in government by those who drafted and ratified the relevant constitutional texts is plainly in favor of the practice of racial segregation. We can argue that their actions did not measure up to a proper understanding of what their words should have meant, but no reasonable person can argue that they can have intended meanings contradicted by their own subsequent actions.

...Well, I would argue that it is _possible_ to argue meaningfully from "original intent."...

Yeah. Original intent can cut both ways along the ideological divide.

basman - You're absolutely right about that.  One's view of original intent is basically a political Rorschach test.  Which is why we should all abandon the pretense of trying to divine the "intent of the framers."

Rhubarbs:  Yes, you can use original intent, but (1) good arguments from original understanding (assuming there are some) are not the simple, straightforward affairs Thomas and Scalia make them out to be, and (2) the original understanding often contradicts not only the decisions of Thomas and Scalia but a great deal of well-established constitutional law.  On (1), there are many questions:  Whose understanding do we use when there was more than one?  How specific should we be when assessing original understanding?  Should we strive to decide today's cases as the drafters of the relevant provisions would have?  Or should we search rather for the original understanding of the *principle* involved and allow today's men and women to decide how best to *apply* the principle.  (In other words, soft or hard originalism?  At what level of abstraction do we fix original understsanding and declare it law?)  How exactly do changed circumstances come into play?  (Consider the 2nd Amendment, for example.  Today's most deadly "arms" are far more deadly than anything contemplated at the time.  Also, we don't have state militias to speak of anymore.)

jhildner - Any honest attempt to discern "original intent" only raises more questions than it answers.  Why, for instance, should we focus exclusively on the intent of the drafters?  What about the understandings of the delegates to the various State ratification conventions, without whom the Constitution never would have been adopted in the first place?  What you characterize as "soft" originalism is likely the best we can do, a realistic middle ground between wooden textualism  and judicial anarchy.

waynejm:  Agreed.

Here's some stuff from the school integration and student speech rights cases that were before the Supreme Court last year, examples which expose Justice Thomas's abject failures as a jurist.  Just imagine Clarence as a lawyer making these arguments in front of a real judge.  

It's a travesty that this political hack, who can't even make supportable arguments in defense of his decisions, now sits on the highest court in our land, it is one of the great shames and embarrassments of our US courts.

Originalist Sins

The faux originalism of Justice Clarence Thomas.

www.slate.com/.../2171508

[This notion that Thomas is radical but principled is half right. To be precise, the first half is right: He is radical. But he does not seem very principled. Consider just two cases from the end of this past term, both involving public schools. One was Morse v. Frederick, the so-called "Bong Hits 4 Jesus" case, and the other was Parents Involved v. Seattle Schools, the voluntary integration case. Thomas wrote a concurring opinion in both cases. In the first, he made the bold claim that students simply do not have any right to free speech in school. Why? Because those who framed the relevant constitutional language would not have expected students to have First Amendment rights while in school......

.....What is noteworthy in his Morse concurrence is that Justice Thomas does not ask what the language of the First Amendment means, either now, when it was originally drafted, or when it was applied against the states through the 14th Amendment. Instead, he asks how those alive at the relevant time would have applied that language to a set of facts different than we face today. This elevates the expectations of the ratifiers and Framers over the meaning of the text itself. But the meaning of the text—as Justice Thomas surely would agree—must be paramount over the subjective expectations of any individual, whether alive or dead. Indeed, it is for this very reason that even most conservatives who claim to adhere to the interpretive theory of originalism disavow the séance approach, despite continuing to practice it when convenient.

But it gets worse for Justice Thomas, considering the second school case, this one about voluntary integration. Thomas also wrote a concurring opinion in that case, in which he lambasted those who try to integrate public schools, calling school integration an elitist fad. He also claimed that using race to integrate schools was obviously unconstitutional and made an impassioned argument in favor of colorblindness—the idea that governments can never take race into account, even to protect or assist minorities.

But guess what's missing entirely from this sweeping opinion? That's right: any consideration, whatsoever, of how the Framers and ratifiers of the Equal Protection Clause of the 14th Amendment would have viewed voluntary integration of public schools. The touchstone originalism of his Morse opinion is nowhere to be found....]

[.....There is no way to make an argument, at least with a straight face, that the 14th Amendment was originally understood to prohibit voluntary school integration. No way. Indeed, given how flimsy the evidence is for Justice Thomas' other argument—that students have no free-speech rights in school—it's clear that he is not shy about stitching together a historical tale from very slim pieces of material. The fact that he doesn't even try to make the historical case in the voluntary integration decision speaks volumes.]

[....Justice Thomas is not sticking with his professed commitment to originalism, and is certainly not living up to his newfound reputation as the high priest of principled originalism.

His recent opinions instead suggest that Thomas will use originalism where it provides support for a politically conservative result, even if that support is weak, as it is in the student-speech case. But where history provides no support, he's likely to ignore it altogether. If his cheerleaders believe otherwise, they should try to reconcile his opinions in the two school cases on originalist grounds.]

[For someone lauded as the originalist's originalist, this is a pretty weak showing. For someone looking to advance a conservative political agenda, however, these three cases constitute a sort of trifecta: Curtail voluntary integration and student rights while boosting the rights of corporations. Not a bad couple of weeks. ]

My big problem with the Bible as the revealed Word, upon which the fate of one's soul is supposed to rest, is that it's not simple, it's contradictory, abstruse and obscure.  This is why, for so long, its interpretation was left to the experts, i.e. the priests.

Sunstein represents the same problem with the Constitution.  Except in the case of the Constitution, we begin with a simple document, the simplest and most elegant national charter in history -- far better than Magna Carta -- which Sunstein and his buddies, by inundating it with case law, have succeeded in turning into a contradictory, abstruse and obscure scripture which only the priests of the law, i.e Sunstein & Co., can interpret.

With "Of course segregation is unconstitutional, but the reason is complicated rather than simple..." Sunstein betrays his profession's conspiracy against the layman.  No, it's not simple, you need an expert  -- me! -- to interpret it.  So the Constitution is no longer what it says it is but what lawyers say it is, which is to say, the Constitution is no longer a three-page précis but a multi-thousand page exegesis.  And Sunstein and his buddies, including the ones in the black robes, are always available to tell us what the mess they've made of the Constitution means.

Thomas, as flawed as he is, is a Reformer à la Luther (who himself was a strict constructionist). He wants to tear down the monopoly of the legal priests, and of course Sunstein and his fellow priests are quick to shore up the battlements to protect their interests.  Sunstein faults Thomas's "originalism" only because it comes down, to Sunstein, on the wrong side of the cases.  Ah, Thomas comes down wrong on this case, which proves his approach is wrong!  Thomas comes down right on that case, which proves his approach is right!  Sunstein is no more immune to reading his "own political convictions into constitutional law" than Thomas.

By the way, the critique of Harlan's opinion in Plessy also can be applied to Brown and Baker, the "right" result's relying on a flawed argument.  Thurgood Marshall could have read from the telephone book and prevailed in Brown.  In effect this is what happened, much of his orals being prompted by the justices themselves, because Marshall was, in truth, a crappy lawyer (as well as, later, a mediocre justice).  In Carr, logic had simply left the building.

Like the religious priests, the legal priests don't want us peeking behind the curtain.  The law, the Constitution, can't be simple.  Their careers can't afford it.

Of course, like the Protestants with the Bible, we can't have this: http://jmr.dk/nyrkr24.jpg  But what we can have is accessibility and clarity, the cardinal virtues of law, which in fact the legal profession, the most monstrous of all protection rackets, has endeavored to render into inaccessibility and obscurity, in order to render themselves indispensable.

Lawyers have turned "government of laws, not of men" into a cruel joke, for we are governed not by laws but by lawyers.  In this, I'm sure Thomas would agree, and in this I'm sure is found the legal priesthood's true brief against Thomas.

Oops, referred to Baker v. Carr as Baker the first time and Carr the second.  Same case.

Well put Mr. Rice. Bravo Zulu. Normally this is a subject which I would love to engage. That I have dire need of sleep prevents meaningful rejoinder. I just wanted to give you an attaboy. Consider it done.

What is the conceptual difference  between trying tio determine intent in your consituition as part of the means of consitutional adjudication--not the exclsive means--and tring to determine the  intent of a statute when a case calls for that?

"What is the conceptual difference  between trying tio determine intent in your consituition as part of the means of consitutional adjudication--not the exclsive means--and tring to determine the  intent of a statute when a case calls for that?"

There isn't a difference and there can't be one. Searching for the intent of a "framer" is an absurd task if one is actually trying to find a juridical norm (a juridical norm is not the "intended" one, but the one that offers a just solution within the circumstances that are presented, which are constantly changing). And in what concerns the American Constitution, it is not only absurd but, if possible, extaordinarilly difficult one. These so-called "originalists" don't know that to precise what they want to precise is almost impossible for actual historians. See Leonard Levy, Original Intent and the Framers Constitution)

And in what concerns these absurd judges of the Supreme Court, "original intent" is nothing but a perverse way of ideological manipulation of the Constitution...

Jack! Where have you been! Haven't heard from you in a while.

Hi Luis. I am finding little time for contribution to the boards these days. Other priorities intrude. I do, however, make the time to peek in on the hurly-burley and survey according to personal time constraints. As you know this 'community' is a great place to challenge and refresh. We are fortunate to have a larger than fair share of thoughtful contributors who claim and fly various flags of persuasion. You are one of those guys, too.

I suspect that the clarifying focus of pressing collective concerns will once again demand my interest and attention thus unmatched contributions. Har-har.

Speaking of hot spots, how's the grundnorm coming along? It seems this article and discussion tees up the whole issue rather nicely. Big things in there. Such an address always finds me skating upon ever threatened ice. As if the insufficiency of cold blown words to contain and maintain simplicity and complexity in simultaneous embrace. That, of course, is the sports charm and attraction. Again, of course, you know that.

I trust that we shall get the opportunity to wander about in the near future as time provides. Be well, Luis.

jm_rice - If the constitution was ever regarded, as you characterize it, as a "three-page precis," certainly that view didn't survive Marbury v. Madison.  Not even Thomas would argue that the concept of judicial review is itself unconstitutional.  Your stated preference for "accessibilty" and "clarity" sounds an awful lot like knee-jerk anti-intellectualism.

"Speaking of hot spots, how's the grundnorm coming along? "

I've already submitted the work. Now I'm serenely expecting that it gets understood, which I hope it will even within a dilacerated juridical culture.  Anyway, I undertook a conscious, honest risk aimed at genuine understanding and healing. I think I was able to reach something. At least everything said is honestly said, within an effort of cultural recovery that took me many years to make. My conscience is clear.

Hope I'll get the chance to talk to you often,

Luís

"Hope I'll get the chance to talk to you often."

I trust and likewise. Dilacerated....of veils and torn curtains. Interesting spiritual modus by which all can approach in like fashion according to a common conceptual vocabulary in concert with individual addresses.

Just because they call me shine. Don't know why I kicked it in. Maybe a touch of faith to go with it?

Jack

I do try to have faith. But faith is a enlightened stage that comes at the end of a long process of self-understanding. And if it comes first, it distorts access, I fear. First comes humility and strive for understanding which possibly unveils being. And, luckily, when being is unveilled, the indispensability of Being is felt. One then starts to understand that "only Your love is so real". And sometimes, at this stage, one is graced and actually feels "faith".

Well I suppose that would be your road as determined by your past and current street address. I heard it's a big neighborhood. Cities, burbs and rural. The whole enchilada.

Yes, Jack, don't see you enough here.  -- the other "Jack"

Wayne, accessibilty and clarity are not my "preferences," but precepts of jurisprudence.  To say that expecting this of the law is "knee-jerk anti-intellectual" is ridiculous.

I'm not saying there shouldn't be judicial review, just that there's too much of it.  Everybody wants to get in on the act, and the appellate courts are no exception.  There's far too much accumulated case law and far too much accumulated statute law.  But this is what lawyers do, so this is what we get:  You can't walk out your door without breaking the law or committing a tort.

Dershowitz likes to tell the story of the newly-fledged J.D. who finds a town with no lawyer and hangs out his shingle.  Business is terrible, and he's about to close shop, when another lawyer moves into town.  Suddenly his business is booming.

The legal racket is indeed a racket -- a protection racket.

jm_rice - No offense intended.  But you can't really grouse about the proliferation of case law unless you're ready to trash the entire English common law system upon which American jurisprudence is based.  We may have become a litigious society, but I think that's more a reflection upon society itself than the legal profession.  Most people feel about lawyers the way they feel about Congress - they hate the legal profession and Congress as a whole, but love their own lawyers and congressmen.

And anyway, this just begs the question of what a constitution is supposed to be.  Most view it as a broad overarching statement of principles, i.e, the brief precis that you describe.  But if this is the case, there will always be honest disagreements when it comes to the application of these broad principles to specific situation.  This is where the courts come in.  And my problem with Thomas on this count is that he usually proceeds backwards from the political result that he wants to achieve and tailors his view of the Constitution to fit his preferences.