Will the Real Constitutional Originalist Please Stand Up?

• Publication year: 2022

40 Creighton L. Rev. 595. WILL THE REAL CONSTITUTIONAL ORIGINALIST PLEASE STAND UP?

Creighton Law Review

Vol. 40

BRADLEY P. JACOB(fn*)

Contestant number one, what is your name, please?(fn1) "My name is Antonin Scalia, and I am the leading original meaning textualist on the United States Supreme Court."

Contestant number two, what is your name, please? "My name is Clarence Thomas, and I am the leading original meaning textualist on the United States Supreme Court."

This is fiction, of course. Justices Scalia and Thomas never appeared on To Tell the Truth, and since the show is no longer on the air, it seems unlikely that they ever will. And even if they could, this is not the way the television program worked. In To Tell the Truth, three contestants would each claim to be the same person - generally a person who was interesting in some way but not so famous as to be identifiable by sight. ("My name is Elvis Presley" or "my name is John F. Kennedy" would not have fooled anybody.) Because the whole point, of course, was that the show's regular panelists (folks like Peggy Cass, Orson Bean, Kitty Carlisle, and Bill Cullen) had to ask each contestant questions and try to decide, by their answers, which one was the real whomever-they-claimed-to-be.

The purpose of this Article, however, is very similar to To Tell the Truth. Justice Antonin Scalia is widely recognized as the preeminent judicial proponent of the "original meaning," textualist approach to interpreting the United States Constitution. Supporters and opponents of originalism alike credit him as the contemporary Godfather of the originalist movement.(fn2) But there is another Justice on the Supreme Court, a quiet Justice who rarely speaks during oral argument and is not famous for his lectures or books on this topic, who may be as much or more committed to the principles of originalism as Justice Scalia. That Justice, of course, is Clarence Thomas. The proof of a judge's judicial philosophy is found in court opinions; so rather than looking to articles and speeches, the modest purpose of this Article is to play To Tell the Truth by examining the evidence of the constitutional decisions written by Justices Scalia and Thomas during their fifteen years on the Supreme Court together(fn3) in order to ask the question . . .

Will the real original meaning textualist please stand up?(fn4)

I. WHAT IS AN ORIGINAL MEANING TEXTUALIST, AND WHY SHOULD WE CARE?

For those who may be new to this topic, there are many different schools, approaches, and philosophies for interpreting the United States Constitution. One leading commentator has suggested that there are six "prevalent sources of meaning for interpreting the Constitution"(fn5) plus no less than nine "approaches"(fn6) and five "prominent contemporary schools of legal philosophy."(fn7) At the bottom line, however, there is one fundamental question that divides constitutional interpreters: Does the Constitution have a fixed meaning that can only be changed by its specified amendment process,(fn8) or can the Supreme Court change the document's meaning at any time? This question drives most other issues in constitutional law. If the Constitution's meaning is fluid - or, as it is commonly phrased, if the Constitution is a "living document"(fn9) - then it does not function as a firm set of rules protecting citizens from unwanted government action. Instead, it is simply a structure that removes tyranny from the hands of hundreds of elected representatives and transfers it to nine unelected and unaccountable Platonic guardians. The "living Constitution" approach is enormously important if you believe that the federal judiciary should have freedom to solve our society's problems by incorporating enlightened social policy into the Constitution, regardless of the lack of textual or historical support. On the other hand, if you believe that it is very important for the written Constitution to tie the hands of the national government, including the judiciary, and force the government to operate within the written parameters of the Constitution unless and until those rules are changed through the (admittedly and designedly difficult) amendment process, then it is equally important to oppose the "living Constitution" and apply some form of textualist or originalist approach to constitutional interpretation.(fn10)

Forty years ago, "living Constitution" thinking was so dominant in judicial opinions and legal scholarship that a dissenting voice was rarely heard.(fn11) Beginning in the 1970s, however, a new, or new-old, perspective began to be heard: originalism. Judge Robert Bork began writing about "original intent" in 1971,(fn12) and the originalist understanding has developed over the past thirty-five years from "original intent" to "original understanding" to "original meaning textualism."(fn13) Today, an ever-increasing number of scholars and judges argue that the Constitution's meaning should be fixed, not fluid, and that federal judges should not be free to make up constitutional law. For present purposes, we can refer to this group as either "originalists" or "textualists." Their acknowledged intellectual leader is Justice Antonin Scalia. His book, A Matter of Interpretation,(fn14) makes the originalist case in no uncertain terms. For example:

But the Great Divide with regard to constitutional interpretation is not that between Framers' intent and objective meaning, but rather that between original meaning (whether derived from Framers' intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and "find" that changing law. Seems familiar, doesn't it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures. Recall the words I quoted earlier from the Fourth-of-July speech of the avid codifier Robert Rantoul: "The judge makes law, by extorting from precedents something which they do not contain. He extends his precedents, which were themselves the extension of others, till, by this accommodating principle, a whole system of law is built up without the authority or interference of the legislator." Substitute the word "people" for "legislator," and it is a perfect description of what modern American courts have done with the Constitution.(fn15)

Based on his many eloquent presentations on originalist thought in speeches, books, and articles, as well as in his Supreme Court opinions, Justice Scalia is uniformly identified by scholars as one of the intellectual leaders of the originalist movement and certainly as the Supreme Court's leading originalist.(fn16) But what about when the rubber meets the road - when the Justices actually decide constitutional cases? Anecdotally, from reading excerpted Supreme Court decisions in law school case books, it seems that Justice Thomas may actually be more consistent in looking to original meaning principles, or at least in doing so in an overt way, than is Justice Scalia. It is time to put that theory to the test - to look back over fifteen years of Scalia/Thomas constitutional jurisprudence and make the judgment: Which one of them is the real original meaning textualist?

Here are the rules of the game: We will look at constitutional cases beginning in 1992 (the first year that both served on the Court), in which either Justice Scalia or Justice Thomas explicitly(fn17) applied original meaning, textualist principles, especially where those principles challenge modern understandings or current case law. It is not difficult for a judge to add, "and, by the way, this is the original meaning of the Constitution" (regardless of whether that is true) to an opinion that follows along with contemporary, post-New Deal understandings of constitutional meaning. We will seek cases in which a courageous Justice was willing to buck modern trends and stand for an original textual meaning that has been lost or discarded by other modern judges and scholars.(fn18) We will give one point for writing such an opinion, and one-half point for joining such an opinion written by the other contestant. Let the game begin!

II. THE EVIDENCE

1992- ESTABLISHMENT CLAUSE

The Supreme Court decided Lee v. Weisman(fn19) in 1992, Justice Thomas' first term on the Court. The case involved a non-denominational invocation and benediction at a public school graduation ceremony, offered by a local rabbi at the request of the school's principal, and determined by Justice Kennedy and the Court majority to violate the Establishment Clause. Justice Scalia wrote a dissenting opinion,(fn20) joined by Chief Justice Rehnquist, Justice White, and new Justice Thomas, that strongly invoked principles of the original meaning of "Congress shall make no law respecting an establishment of religion"(fn21):

Three Terms ago, I joined an opinion(fn22) recognizing that the Establishment Clause must be construed in light of the "[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage." That opinion affirmed

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