Jeffrey Toobin Dismisses Originalism with Usual Clichés
In the current issue of the New Yorker, Jeffrey Toobin takes stock of Justice Clarence Thomas's two decades on the high court. The article is ostensibly about how Justice Thomas and his wife Virginia may succeed in shutting down ObamaCare at the constitutional level. Walter Russell Mead and Rush Limbaugh have interpreted the piece as a warning to liberals that it is time to abandon the caricature of Thomas -- who now poses a lethal threat to their political ends -- as an unqualified intellectual lightweight. (As a law student on a job interview, I remember a partner at a major New York law firm casually demeaning Justice Thomas's jurisprudence: "Scalia says 'X'; Thomas says 'me too.'")
Commendably, Toobin cites numerous law professors who have praised Justice Thomas's intellectual rigor and philosophical consistency. Toobin also notes that Thomas, not Scalia (as is widely thought) has been the driving force propelling the Supreme Court to an originalist approach on a host of issues, including federalism, gun rights, and election speech. But after describing the sea-change that Justice Thomas has wrought in the Court's jurisprudence, Toobin dismisses the entire enterprise of originalism:
Thomas's approach to the Eighth Amendment underlines some of the problems with his approach to the Constitution, and with originalism generally. . . . notwithstanding Thomas's enduring certainties, it is difficult to know what the framers would have thought of any given situation. . . . It is true, too, that the framers often disagreed profoundly with each other, making a single intent behind the Constitution even more difficult to discern, and the twenty-seven amendments (all with their own framers) created another overlay of complication. For all of Thomas's conviction, originalism is just another kind of interpretation, revealing as much about Thomas as about the Constitution.
This is the standard tack against originalism (near-universally taught to all first year law students). Those of us who have studied the founding era, however, know that the framers and other leaders of the founding generation were prolific writers and their views on innumerable economic, social, political, and legal (i.e., constitutional) issues were well-developed and are readily available to anyone who is interested.
While real disagreements among the framers persisted throughout early America, their views on many if not most of the fundamental constitutional questions that vex the present Court are no secret. For example, whether the federal government or state and local governments should regulate public health is not a constitutional question on which the framers' would divide or on which their views are unknown.
Certainly, ignorance about the Constitution and the founding era proliferates. But we might consider that some who reject an originalist interpretation of the Constitution do so not because the original meaning is unknowable -- they do so precisely because it is.