And if conditions change and parts of the originalist Constitution become obsolete, amend it. Democratically. We have added 17 amendments since the Bill of Rights. Amending is not a job for judges.
The position represented by Scalia's argument in this case is less ``conservative.'' It recognizes that decades of precedent (which might have, at first, taken constitutional liberties) become so ingrained in the life of the country, and so accepted as part of the understanding of the modern Constitution, that it is simply too revolutionary, too legally and societally disruptive, to return to an original understanding long abandoned.
And there is yet another view. With Thomas' originalism at one end of the spectrum and Scalia's originalism tempered by precedent -- rolling originalism, as it were -- in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.
This is what our debate about judges should be about. Instead, it constantly degenerates into arguments about results.
Two years ago, Thomas (and Scalia and Rehnquist) dissented from the court's decision to invalidate a Texas law that criminalized sodomy. Thomas explicitly wrote, ``If I were a member of the Texas Legislature, I would vote to repeal it.'' However, since he is a judge and not a legislator, he could find no principled way to use a constitution that is silent on this issue to strike down the law. No matter. If Thomas were nominated tomorrow for chief justice you can be sure that some liberal activists would immediately issue a press release citing Thomas' ``hostility to homosexual rights.''
And they will undoubtedly cite previous commerce clause cases -- Thomas joining the majority of the court in striking down the Gun Free School Zones Act and (parts of) the Violence Against Women Act -- to show Thomas' ``hostility to women's rights and gun-free schools.''
I hope Bush nominates Thomas to succeed Rehnquist as chief justice, not just because honoring an originalist would be an important counterweight to the irresistible modern impulse to legislate from the bench, but perhaps more importantly, to expose the idiocy of the attacks on Thomas that will inevitably be results-oriented: hostile to women, opposed to gun-free schools ... and pro marijuana?
Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.
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