Two liberal law professors attack Justice Thomas for being “unprincipled” in his application of “original interpretation” jurisprudence in to two cases decided at the end of the term. Their criticism is so elementary (and wrong) that I doubt they truly understand what originalism is—even if one of them teaches at the University of Virginia law school. I don’t have the time or desire to refute them, but I will make two observations.
First, I am grateful that Justice Thomas has a jurisprudential standard to which he is held. On a purely philsophical level, it is not possible to assail any of the liberal justices on the Supreme Court based on a jurisprudential standard they purport to uphold because they do not have a standard other than their own preferences. Think about it: Do you hear any discussion of a liberal theory of jurisprudence (other than Justice Breyer’s absurd “exercise of legal judgment” which is, again, just whatever the judge thinks)? You don’t because they have none; they are intellectually bankrupt. Even if a liberal law professor wanted to critique the reasoning of, say, a Justice Ginsburg opinion, there would be no intellectual way for him or her to do so because she has no baseline to which you can compare her reasoning. It’s anything goes, hence the liberality in their results.
This point leads to my second one, which is that there is a growing sentiment among liberals that they should try to co-opt originalism from conservatives—claiming that the Founders actually thought the way liberals do. I find this amusing because (a) liberals have been attacking the supposed silliness of originalism for 20 years and (b) the very idea of originalism undermines liberal thinking. On point (a), it is ironic, to say the least, that originalism all the sudden becomes legitimate when liberals decide they want to try and use it. The only reason they want to do this is because they believe that the rhetoric of originalism has become a powerful political tool. If there is a standard for liberals it is that: political utility. They think Scalia, Thomas, the Federalist Society, etc. have made political inroads because originalism sounds scholarly. Because it has worked to a degree on the political level, liberals want to do what Bill Clinton was the master of doing: steal a good idea by using your opponent’s terminology to arrive at your own conclusions.
The fact that they are only doing this for political gain and not some actual reverence for the Founders goes to point (b): liberalism is not compatible with originalism. This is an inescapable fact: by definition liberals believe in progressive thinking, the idea that each generation is smarter than the previous one and improves society by departing from old social mores. Originalism holds that the proper meaning of the Constitution is that which it meant when it was adopted by the people in 1789. In a very real sense, it is a static concept that does not make room for the “evolving standards” by which liberals justify their thinking and behavior. There is no reason to care about the founding generation’s view of the Constitution if we know better than they do how life should be lived and government should operate, which is precisely what liberals believe. So their adoption of originalism is a facade made for Machiavelian purposes. Even so, I am reminded of the famous line: imitation is the sincerest form of flattery.
