Media, culture, and politics from an aesthetic-materialist's perspective.

Wednesday, August 8, 2007

Originalism's Dead Letter

An article on by Doug Kendall and Jim Ryan scrutinizes recent opinions written by Associate Justice Clarence Thomas and finds that the self-proclaimed originalist is not as principled as his judicial philosophy would seem to demand. In Kendall and Ryan's analysis, Justice Thomas applies the doctrine of originalism neither coherently nor consistently but partially and selectively.

In two important cases from last term, Morse v. Frederick and Federal Election Commission v. Wisconsin Right to Life, Inc., Thomas at once denied a student's freedom of speech in a public high school and asserted a corporation's freedom of speech in sponsoring ads (past a deadline established by the McCain-Feingold Bipartisan Campaign Reform Act) during a public election. The problem is that in one case, Morse, Thomas invoked the "Founders" to declare that "they" never thought of granting students First Amendment rights in public schools, while in the other, FEC, Thomas concluded that corporations held the same free-speech right as individuals (though not students in public schools), despite the fact that the Founders' generation was more inclined to believe that corporations are, in Chief Justice John Marshall's words, "an artificial being, invisible, intangible, and existing only in contemplation of the law."

Kendall and Ryan do a masterful job of deconstructing Thomas's "logic" here. By originalist standards, the second opinion, FEC, is downright unsupportable. The texts of the earliest constitutional law in the United States nowhere grant corporations -- which did exist at the time -- the same rights as individuals. A corporation was considered a legal fiction, not a living, breathing citizen like you or me. And yet the professed originalist, Thomas, somehow managed to overlook that body of textual evidence in supporting the majority decision penned by Chief Justice John Roberts and joined by Associate Justices Scalia, Kennedy, and Alito.

Even in Morse, where Thomas applied schoolboy historicism to say that the Founders never granted students free-speech rights (public schools didn't exist at the time), Kendall and Ryan point out that a bonafide originalist reading might have yielded a different result. Originalism, they argue, doesn't simply ask, "Did the Founders knowingly and intentionally formulate this or that right?" Rather, originalism inheres in a fidelity to textual meaning -- a way of reading the Constitution in its most robust and principled form. A true originalist, Kendall and Ryan posit, would argue that "the meaning of the text... must be paramount over the subjective expectations of any individual, whether alive or dead."

Originalists say they are merely reading the Constitution to the letter. Kendall and Ryan suggest they aren't: those like Thomas are intentionalists (my term), not originalists -- they don't actually read, or interpret, the Constitution but rely on the dubious assertion that because certain things didn't exist in the eighteenth century (like public schools), the Founders couldn't possibly have legitimated any constitutional "right" relating to them. This "argument" is so facile it's insulting to anyone forced to listen to it. "Didn't exist, so couldn't have been" -- like a kid sticking his pointer fingers in his ears and singing, "La la la la la," to drown out his interlocutor's more persuasive claim.

By now it should be clear that originalism doesn't read the Constitution to the letter -- it renders the Constitution a dead letter, a document that, in itself, is utterly meaningless, because, remember, it's not what the text says or means but whether or not this or that existed when the Founders actually lived. Thus, with the passing of the Founders, so went all of our rights.

All of which is to say that Clarence Thomas is neither an originalist nor a particularly good jurist. For between his intentionalism in Morse and his outright business-friendly partisanship in FEC, it's clear that Thomas is nothing but a results-minded arch-conservative who hands down incoherent but consequential decisions on the U.S. Supreme Court. His supporters will congratulate Thomas on his courage and consistency, but if one were to take the time to read and compare his cases alongside each other (as Kendall and Ryan do), one would be hard pressed to find a shred of recognizable constitutional insight in them.

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