Thomas' originalism

Posted: Jun 10, 2005 12:00 AM

WASHINGTON -- Justice Thomas: ``Dope is cool.''

     Justice Scalia: ``Let the cancer patients suffer.''

     If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized the Supreme Court decision this week on medical marijuana in California. It was ruled illegal because the federal law (prohibiting it) supersedes the state law (permitting it). Scalia agreed with the decision. Thomas dissented.

     In our current corrupted debates about the judges, you hear only about results. Priscilla Owen, we were told (by the Alliance for Justice), ``routinely backs corporations against worker and consumer protections.'' Well, in what circumstances? In adjudicating what claims? Under what constitutional doctrine?

     The real question is never what judges decide, but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.

     It was about what the commerce clause permits, and even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Scalia says: Supreme Court precedent.  Thomas says: the Founders, as best we can interpret their original intent.

     The Scalia opinion (concurring with the majority opinion) appeals to dozens of precedents over the last 70 years under which the commerce clause was vastly  expanded to allow the federal government to regulate what had, by the time of the New Deal, become a highly industrialized country with a highly nationalized economy.

     Thomas' dissent refuses to bow to such 20th-century innovations. While Scalia's opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates) to understand what the word commerce meant then. And it meant only ``trade or exchange'' (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown marijuana.

     This is constitutional ``originalism'' in pure form. Its attractiveness is that it imposes discipline on the courts. It gives them a clear and empirically verifiable understanding of constitutional text -- a finite boundary beyond which even judges with airs must not go.

     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?