Today's Wall Street Journal features an excerpt from a speech Justice Clarence Thomas gave last week at the Manhattan Institute on the topic of "How to Read the Constitution." This passage gets right down to business:
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.
It's notable to see Thomas referring to "original intent," rather than "originalism" or "textualism," which are the preferred methodologies on the right. Justice Antonin Scalia, for one, dropped the earlier locution, arguing that since the minds of the framers were unknown to us, we certainly couldn't know what they intended. Originalists, on the other hand, argue that we should look to the written text, particularly its established public meaning at the time of constitutional ratification. I'm assuming Thomas meant something more along those lines. If that's the case, I'd agree. We should look at the text, the larger constitutional context, the relevant history, the author or authors' statements of purpose, and the statements of support from those who supported and ratified the document.
But none of that means that the debate will necessarily be over. What about unenumerated rights? Do we have a right to privacy? What about a right to send our kids to private school? Former federal appeals court Judge Robert Bork, for instance, maintains that if the Constitution does not specifically mention a right, it doesn't protect it. Scalia has argued along the same lines. But then there's the 9th Amendment, which states that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparate others retained by the people." Bork, in his failed Supreme Court confirmation hearings, compared the 9th Amendment to an "inkblot." Randy Barnett, however, argues that the amendment "means what it says;" namely, it protects unwritten rights.
In any case, it's an interesting speech and well worth perusing.