A Totally Original Rant About Originalism
In the latest example of Supreme Court hypocrisy, Justice Clarence Thomas—the self-styled “man of the people” who prefers “RV parks” and “Walmart parking lots” to “the beaches”—has, according to the Beacon Hill Times, “been accepting luxury vacations from a Texas billionaire for the past 25 years.” Out of all the countless instances of the Court’s moral decadence, this one is the most eye-catching. Setting aside the obvious conflicts of interest, these revelations show how Justice Thomas’ populism is nothing other than a cover for the interests of the rich and powerful. Nevertheless, lost in these conversations about the “Supreme Hypocrite” is perhaps the greatest hypocrisy of all: “originalism.”
According to its adherents, originalism is the belief “that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law” (National Constitution Center). Put simply, originalists argue that the Courts should interpret the Constitution as the people who wrote it would have. If the Framers did not think the First Amendment forbade public prayers in public schools, then the Court must necessarily follow that opinion, and so on. Anything else, they say, would be a judicial overreach.
In practice, of course, originalism has been twisted to serve the needs of conservative justices and legal scholars. Consider the late Supreme Court Justice Antonin Scalia. To many, he was the public face of originalism. Yet his comments during the Court’s hearings on Obamacare in 2012 suggest otherwise. Namely, in his questioning, Justice Scalia infamously likened Obamacare’s health insurance mandate to the government forcing people to buy broccoli. But, even if you somehow think this comparison holds (and I don’t), the U.S. government has had the power to make people buy things since the time of George Washington; indeed, “President Washington once signed a bill asking Americans to buy a musket and ammunition” (“One Document, Under Siege,” Richard Stengel, from Time’s The Constitution: An Essential User’s Guide). As Justice Scalia ought to have known, a bad policy does not always make an unconstitutional policy. Unless he was trying to “legislate from the bench.”
Scalia’s hypocrisy was not a one-off in the history of conservative originalism. In Citizens United, the Court—including none other than Justice Clarence Thomas—argued that the First Amendment protections of freedom of speech entailed a right for corporations to spend virtually unlimited amounts of money on campaigns with little to no transparency or accountability. In short, corporations have the same rights as people, even though modern corporations 1) did not exist in the Founding Era and 2) were and “are artificial creatures of the State, subject to government oversight to ensure that they do not abuse the special privileges granted to them to succeed in business” (David H. Gans, American Constitution Society). Corporate personhood goes against both the Founders’ original intentions and Court precedent.
Why is originalism so easily bent to the will of the American elite? Because it is a flimsy legal philosophy. To understand why, consider the following thought experiment: let’s say that the Framers did not consider the guillotine to be “cruel and unusual punishment.” In fact, let’s suppose that, like the 18th-century French doctor who first came up with the idea, the Framers thought the guillotine was a way of avoiding the brutal and barbaric executions of the past. Would that subsequently obligate the Court to proclaim that execution via the guillotine does not violate the Eighth Amendment? Better yet, what if the Framers wrote the Constitution in the 13th century instead of the 18th? Would that force the Court to stand by powerless if Texas decided to behead someone for a capital offense?
The Court never needed to take such a stance to preserve the Framers’ vision. The Constitution was always about timeless principles, not their application. The Framers undoubtedly understood that they were men, and that they could not foresee every development in science or technology or ethics. Especially since many of the Framers disagreed amongst themselves on how to apply the principles enshrined in the Constitution, why should we take their word on the matter as final?
The current Court knows all this well. Otherwise, they would follow originalism to its logical consequences (God help us if they ever change their minds). Instead, they take originalism to mean their peculiar form of “small government”—that is, small government for corporations and corporations only. But if the Court wishes to serve the American oligarchy, let them be honest, and not hide behind meaningless legal jargon.
It would certainly save Justice Thomas the time of filling out his disclosure forms.