December 6, 2007
A review of a book on Clarence Thomas---Kevin Merida + Michael Fletcher's Supreme Discomfort: The Divided Soul of Clarence Thomas. Thomas is frequently confused with the diminutive, Sicilian shin-kicker Justice Antonin Scalia, in that both are aggressive proponents of “originalism”, the idea that the Constitution should be read in the light of its original meaning, or according to the original intent of its draftsmen.
Originalism is often conflated with other so-called “conservative” approaches to constitutional interpretation, such as the “strict constructionist” school or the judicial minimalist stance. Originalism, however, is a singular phenomenon with a specific historical lineage. Whereas strict constructionism and the minimalist approach have their roots in a structural regard for the integrity of the broader federal system or in a pragmatic antipathy towards judicial intervention in certain sensitive policy areas, these are not quite the same as originalism as articulated by Robert Bork, Scalia, Michael McConnell or Thomas.
While originalists trumpet their approach as an objective corrective to the hysterica passio of the Warren Court, this philosophy is just a euphemism for an old conservative agenda, embracing states’s rights, right to life, school prayer, school vouchers and jail time for pornographers (Thomas, J. dissenting from this last part). Originalism in their hands is actually a conservative policy platform, not a simple method of statutory or constitutional adjudication.
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