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The Originalist Dodge

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Clarence Thomas makes a typical argument in favor of originalism:

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…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.

The choice between “originalism” and “nihilism” is a silly, false one; even to most realists, not all constitutional arguments are equally plausible. The idea that originalism is “impartial” is equally indefensible, not least because “originalism” rarely produces determinate outcomes when applied to concrete cases (and in the rare cases where “originalism” cannot produce a plausible conservative outcome on cases Thomas strongly cares about, he’ll simply ignore the evidence anyway.)

This formulation is important, however, because unless the choice is “originalism or nothing” originalism has no chance to become a widely acceptable method. If there are multiple defensible interpretive methods, originalists would have to explain why it’s normatively attractive to bind 21st century Americans to 18th century constitutional norms, a claim most people (including, when you actually get down to cases, most originalists — like the “faint-hearted” Antonin Scalia, not to mention most of the founders themselves) will reject. Rather, originalism fails on both counts: it’s not normatively appealing, and it doesn’t constrain judicial discretion more than other theories of constitutional interpretation. Thomas doesn’t address these arguments so much as make assertions that dodge the crucial questions.

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