Constitutional Law

Justice Thomas on interpreting the Constitution

Excerpts from his Wriston Lecture:

"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. ... Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

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."

Well put. Makes me again wish that he'd ask questions during oral argument. He has a good voice, a sharp mind, and a way with words.

I find it encouraging that the Court is taking interpretative methodology seriously. Textualism (the words are the key, some some unwritten intent) vs. original intent (of the Framers who wrote) vs. original public understanding (of Americans at large who ratified) vs. pragmatism (figure out what the Framers intended to design and construe so as to accomplish that end... which tends to morph into figure out how I would have designed it and so construe it). At least there's serious discussion. Until about a decade ago, courts just, bluntly, made this ___ up as they went along, throwing in a few quotes from the Framers as window dressing.

Full post as published by Of Arms and the Law on October 23, 2008 (boomark / email).