Clarence Thomas Still Hasn’t Received the Memo About Original Intent

Last week, Justice Clarence Thomas delivered the annual Wriston Lecture at the conservative think-tank the Manhattan Institute, and the Wall Street Journal republished a portion of this lecture on its op-ed page. It’s a fascinating speech that begins with President Kennedy’s call to ask “what you can do for your country” and at times echoes Senator Barack Obama’s call for sacrifice and personal responsibility (no endorsement was forthcoming).

The speech, however, took a turn toward the typical at the end, where, echoing Justice Scalia, Justice Thomas defended “originalism” as the best and most legitimate approach to interpreting the Constitution:

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. . .

Then, breaking with Scalia—and pretty much everyone else, liberal or conservative—Thomas turned from “originalism” to “original intent” as the controlling mode of interpretation:

Let me put it this way; there are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Problem is, the idea that judges should are bound to follow “original intent” was debunked long ago, even among (and in many cases, by) conservative scholars and by Justice Scalia, who eschews original intent of the Framers in favor of the “original meaning” of the Constitution’s text. While Justices Thomas and Scalia often sound and act like they are saying the same thing, their method of constitutional interpretation is actually quite different.

A little history is useful here. When Edwin Meese became Ronald Reagan’s Attorney General in 1985 he called for the judicial philosophy of “originalism,” in which courts followed the “intent” of the Constitution’s 18th century Framers. This notion immediately drew criticism from progressives, who noted (among other excellent points) that the Framers themselves never intended for their intent or expectations to control future jurisprudence. Most conservatives soon conceded that what matters most is not what one group at one time intended or expected the Constitution to mean, but rather what the text of the document itself means. After all, it is the text of the Constitution that “We the People” ratified, not the personal motivations or intent of the Framers.

The search for “original meaning” based on constitutional text and history has now become a generally-accepted starting point for judges on both sides of the bench, whereas the idea that judges are bound by the Framers’ “original intent” has become a relic practiced only (and inconsistently at that) by Justice Thomas. Maybe it is the impracticality of holding a séance with James Madison every time a constitutional question comes before the Court, or maybe it is simply the impropriety of allowing the expectations of individual men of a long-ago time govern our constitutional order instead of the words of the Constitution itself.

Either way, “original intent” is one fad from the ‘80s that, like Members’ Only Jackets and MC Hammer pants, deserves to stay buried in the past.