I am going absolutely crazy with all the talk of Clarence Thomas and his total perversion of originalism. I’m not one to rant, but this is the closest I will ever come to declaring an absolute- Originalism is NEVER appropriate. Thats right, there is never an instance where it is appropriate to take our noses out of the statutes, turn our history books to 1787, and check out what Jefferson, Hamilton, or Madison would have done. Why? Because if we look to them for moral and legal advice, we are sure to find ourselves in a society that we now frown upon. Lets take a look at how a few recent cases would have be decided in the earliest court:
Morse v. Fredrick: HA. This student would have been beaten to death by a teacher. Thomas would support it. Not only would the teacher have won in the Supreme Court, but there wouldn’t be a suit in the first place.
Gonzalez v. Carhart: A women’s right to an abortion?! Not so much. Forget about a woman bringing a suit in court. Women had rights, they just didn’t have the right to question the actions of their state legislature. Griswold found its core by applying the Fourteenth Amendment to the states but there was no Fourteenth Amendment until 1868. Justice Ginsburg’s riveting dissent? Forget it, she wouldn’t be on the Court. Maybe they would have let her write a riveting court transcript?
Ledbetter v. Goodyear: “Sex-based discrimintation? Isn’t that the best kind?” — reads the Opinion of the Court in a 9-0 decision penned by the Court’s most liberal member: Justice Scalia.
Roe v. Wade: Assuming Thomas Jefferson adhered to originalism himself, he would have found that George Washington and John Adams did not acquire more land for the United States through treaties and he was therefore not authorized to buy land from France. This set the precedent for future Presidents and Texas never would have been annexed in 1845. No Roe v. Wade (in US Federal Court, at least.)
Brown v. Board: Thurgood Marshall would never be admitted to the Supreme Court Bar so he never would have given his rather brilliant defense of Brown in this case. Also, a 9-0 court would have somewhat easily squashed the notion that fourteenth amendment equated to protection of people against de facto racism. How can the government force people to get along with one another?
Oh, don’t forget that the Bill of Rights didn’t even apply to the states until the ratification of the 14th Amendment following the Civil War.
Jack Balkin finds fault at Clarence Thomas’s views in some of the latest cases before the Court. Professor Balkin legitimately contends that one form of originalism searches for the meaning of certain words and another searches for the application of those words to real-world scenarios. Where Balkin and I diverge, however, is on the legitimacy of those approaches. Balkin seems to support the search for definitional clarity while disapproving of the search for interpretation- I disapprove of both.I disapprove of the theory of original intent so categorically because of both its theoretical motives and the way in which it is (nearly) always implemented.
The generally accepted intent of originalism is to search for the way in which our forefathers viewed matters and apply those notions to issues today. The problem with looking to our forefathers for advice is that when we try to mimic the past we have to first assume that the past was better than the present in a certain area. In the case of Morse, Justice Thomas makes the assumption that since schools were better when we beat children, we should allow our children to be beaten today. That type of presupposition isn’t nearly as universally accepted as Justice Thomas would like us to believe and he offers no reason for us to join in his logic. Well, I contend that things weren’t better when teachers treated students like pinatas of knowledge. In so many other fields of study, we consider the present to be superior to the past. For example, most people (Justice Thomas included) would say that mankind has made great strides in civil rights. Hopefully Justice Thomas would not roll back the clock on civil rights to say….before the Thirteenth, Fourteenth, and Fifteenth Amendments? Even outside the realm of civil rights, I contend that mankind has made huge strides in closing the socio-economic gap, making food storages more available, and enhancing the role of education in the populous. Even if Justice Thomas disagrees, it is presumptuous at best to assume that the past is always right. If he offered justification for adhering to the past, it would be originalism with arguments from today and I don’t see anything wrong with that (although I imagine I would disagree with his logic.)
If Justice Thomas disagrees with me on this point, he forgets that his opinion never would have been heard because he wouldn’t be a Supreme Court Justice in his own beautiful world. If the Senate chose to follow original intent during his confirmation process, they would have found that neither George Washington nor any of our nations first 35 executives were interested in appointing an African-American to the nation’s highest court. In fact, in order for the Senate to find solace in confirming Justice Thomas, they would have to flip back only 20 years in their history books, making sure to ignore quite a bit of history before then. We wouldn’t know who he was because his role (and mine) as a second-class citizen would have been cemented in society long after the War of Northern Aggression. In reality, why did the Senate confirm Justice Thomas (or Justices Louis Brandeis, Thurgood Marshall, and Sandra Day O’Connor before him)? Because they felt that the American people were ready to buck the trend of racial, gendered, and religious inequality. Our representatives knew that at the time, the American people were ready for something different and acted upon that.
I realize that a lot of people will reply with the predictable response- “The legislature is a political body but the Court is supposed to work with precedent. Therefore, Originalism is simply the purest way to adhere to precedent.” Try not to act surprised– but I disagree. The difference between adhering to precedent and subscribing to originalism is the notion that originalist believe that a single fixed period of time should be our method of evaluating whether or not a given action is appropriate. Adhering to precedent means looking at recent applications of a law and maintaining a constant evaluation. In many cases, originalism and ‘judicial restraint’ are in conflict. (I use the word ‘judicial restraint’ casually but I know it has all sorts of connotations that could spark a war of their own.) For example, Justice Thomas could contend that our founding fathers originally owned slaves and very intentionally did not abolish slavery in the Constitution of 1787. Justice Scalia could come back and say, like he has in the past, that he wishes that we still lived in the good ol’ days, but he has to stick to the way the court’s current (~150 year old) interpretation despite his personal reservations. Both those types of logic have been hailed as conservative hallmarks for decades now but they are obviously contradictory.
This is where my second reservation to originalism comes into play- It appears illogical at best and downright malicious at worst to pick-and-choose at the past for advice in today’s legal arena. Looking at 1787 without looking at every year in between ignores the trials and tribulations of history that Americans have been through. We change over time precisely because we experience things as a nation that force us to change our perceptions and attitudes to actions that we never would have ordinarily considered. Originalism always involves very clear activism on the behalf of a judge who is operating under the disguise of ‘judicial restraint’ and is a blatant use of ‘activism’ that should never, ever be labeled as anything other than a judge using the past to rationalize his true (usually personal) attitude towards a subject. Today, we look at the recent behavior of the court or the trend in interpretation and evaluate decisions based off of that. If Justices have reservations about the current trend, they rule on the facts of the current case as they deem appropriate. I have no idea why we need to act like 1787 is somehow the benchmark for society in 2007. We’ve made great strides in the last 200 years and we certainly hope to better ourselves over time- there is no reason why we should pick that arbitrary date and try to mimic it. Our founding fathers certainly weren’t concerned about adhering to norms of their day. I’d say that American Revolution was quite the act of judicial (political) activism…