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original sin

15 October 2004

Colorado State Senate President John Andrews said earlier this year: "I think it is too easy for judges who have virtually open-ended tenure on the bench to sometimes cross the line and attempt to make law instead of interpret the law." Because that's what we want from our judges, right? that they resist the temptation to make law – the legislator's role – and stick to just telling us what the law means.

Ignore for the moment that the distinction between making law and interpreting it is hardly an either-or. (In a sense it's like Andrews is saying "I don't want Mom to fix me a cake. I want her to stick to mixing flour and eggs in the correct ratio and baking them in a greased pan for the correct amount of time.") If making and interpreting are really separate functions, we certainly want judges to do the latter, right? And we'll expect that judges who commit themselves to interpretation will hew to their principles and never think of the results, only of the original intent of the legislators or Constitutional framers who truly made the law.

So why is it that the Supreme Court's most extreme exponents of interpreting the Constitution according to the original intent of its framers – Antonin Scalia and Clarence Thomas – invariably come down on the far right wing of any possible decision, from whether slapping prisoners around is OK to assuming that George W Bush, in 2000, had a right to the White House? Could James Madison and Alexander Hamilton have been channeling Tom DeLay?

In Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives, Samuel Marcosson makes a concise and elegant case that Justices like Thomas and Scalia aren't at all interested in principle. They are federalists when it suits them and anti-federalists when it doesn't; they are originalists when it suits them and anti-originalists the rest of the time. (It's not necessarily the case that left-wing judges have been more neutral, of course; but left-wing judges don't pretend to be neutral; they don't present themselves as the transparent conveyers of the thinking of a bunch of white men in Philadelphia in 1787.)

Marcosson explores the fatal flaw of originalist doctrine by means of a thought-experiment: how would Justice Thomas have decided Loving v. Virginia, the epochal 1967 Supreme Court case that struck down state laws against interracial marriage? Madison, Hamilton, et al. may have been broad-minded guys, but they distinctly didn't think miscegenation was cool. And for that matter, neither did the framers of the Fourteenth Amendment in 1868. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," sure, but there were approximately zero state legislators in 1868 who believed that it was a privilege or immunity of any freedman to marry a white woman. In fact, the framers of the Fourteenth Amendment argued that they were interested only in political rights and property rights, not in "social rights" like the freedom to marry whomever you wanted.

Yet Clarence Thomas would inevitably concur in Loving v.Virginia and vote to allow interracial marriage. And only partly because he is a black man married to a white woman and resident in Virginia. In other cases, he has expressed the opinion that the Fourteenth Amendment demands "color-blindness" when it comes to any kind of law, not just those that involve political and property rights.

The thing is that a right to "color-blindness" is no more a part of the Constitution than a right to "privacy" (a favorite bugbear of originalists). Yet both color-blindness and privacy, though they have to be inferred from the text and in a sense "made" by judges who cannot interpret the framers' intentions as including these principles, are central to the legitimacy of our system. Marcosson argues that judges cannot simply insist that the Constitution be a static document. It is far more legitimate, in Marcosson's view, to infer that the Constitution entails certain rights that aren't spelled out there – and that even originalists take this view when it suits them, or when the alternative is politically suicidal.

For Marcosson, judges can make a legitimate Constitution by interpreting the old one in ways that recognize when its framing was historically illegitimate: unrepresentative, racist, sexist, anti-democratic. The document is so imperfect that to consider its literal language as sacred is to make it a fetish rather than an enlightened supreme law.

Marcosson, Samuel A. Original Sin: Clarence Thomas and the failure of the Constitutional conservatives. New York: New York University Press, 2002.