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Legal Commentary

: Balkinization

Clarence Thomas Argues for Original Intention, Not Original Meaning?

By Jack M. Balkin

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In his Wriston Lecture, excerpted in the Wall Street Journal, Justice Thomas appears to advocate an originalism based on original intentions rather than one based on original meaning.

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.

This passage is puzzling because for years many people have assumed that Thomas is a devotee of original meaning originalism. There is a significant difference between original intentions and original meaning. For example, I consider myself an original meaning originalist but I have argued that original meaning does not commit us to following original intentions or original expected applications. So a lot turns on the distinction. An original intentions originalist would argue that we give content to vague and abstract clauses (like equal protection or free speech) by limiting them to the framers' intended reach. Thus, if the framers did not intend that the equal protection clause would trump common law rules that denied married women most of their common law rights, there is no justification for protecting sex equality rights under the equal protection clause today.

What's unclear is whether Thomas is claiming (1) that he is abandoning original meaning approaches for original intention (which would be surprising); (2) that he thinks that an inquiry into original meaning is really the same thing as a inquiry into original intention (a highly controversial claim); (3) that the two methodologies rarely come out differently in practice so we can treat them as the same (which is not the case, as noted above); or (4) that he assumes his audience doesn't know or care much about the differences between different methodologies of originalism and so he will use "original intention" as a shorthand for all of the various forms of originalism, even though they may produce very different results. As long as someone is an "originalist" of any stripe, they are judging impartially; otherwise they are just making things up.

Number 4 is surely the most charitable assumption, but why not just use the term "original meaning," which is by now well recognized among legal conservatives and generally preferred to original meaning? Should we assume that Justice Thomas, unlike the Framers, should not be held to mean what he said?

If someone has a link to the full text of the lecture, please put it in the comments; perhaps later on in the lecture Justice Thomas makes his meaning (or his intentions) more clear.

Full post as published by Balkinization on October 20, 2008 (boomark / email).