"Originalism" Was Not Originally Intended

H Dog at the UPC has a post up about "Originalism," as Charles Krauthammer calls it, as a theory of Constitutional interpretation. His post is basically a recap of a Krauthammer piece that attempts to portray Clarence Thomas' opinions as being based on a logical and consistent theory. Of course, Krauthammer does not tell you what any of the criticisms of originalism are. I'll give you just a couple of "originalisms" fatal flaws.

First, the historical evidence indicates that the drafters of the Constitution did not intend for their intent to govern future interpretation of the Constitution. They used broad, vague and oftentimes ambiguous language in the Constitution. Yet, they did not use a stenographer to record their debates over the Constitution and, in fact, appear to have destroyed all evidence of their intent in drafting the constitution (w/ the exception of Madison's notes which were arguably kept in contravention of the desires of the other founding fathers). The founding fathers did not stop at just not making a record of the constitutional convention, they also did not argue that their intent governed constitutional interpretation at any of the states’ ratifying conventions. Nor, when the court was engaged in some of the seminal cases regarding constitutional interpretation, e.g. Marbury v. Madison, did they go to the court and insist that their intent apply.

As to Madison's notes, they, tellingly, were not published for more than 50 years after the constitutional convention. Yet, in his notes, he specifically derided the notion of original intent stating: "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the convention can have no authoritative character."

A second problem for "originalists" like Thomas is that the evidence indicates that the drafters of the Constitution did not intend the Bill of Rights to be an exclusive list of the rights retained by the People as Thomas suggests. Hamilton and the federalists, as Hamilton makes clear in the Federalist Papers, objected to the drafting of a Bill of Rights on the ground that it could wrongly be interpreted as an exclusive list of rights retained by the People. To ensure this wasn't the case, the Ninth Amendment was added. It states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Fourteenth Amendment made it clear that the rights retained by the people, whatever they may be, could not be overridden by the States. Undoubtedly, the Constitution has left an indefinite area regarding the rights retained by individuals and States' rights. Here, the courts must engage in line drawing based on the text, precedent, history and principle.

Krauthammer implies Thomas' opinion to uphold a Texas law criminalizing sodomy is rational because "the Constitution is silent on this issue." Yet, clearly it is not a rational position that silence by default renders a power to the States given the explicit history of the Bill of Rights. Indeed, turning Thomas' argument on its head ... where in the text of the Constitution are governments given the right to interfere with people's private sexual behavior? Thomas simply draws the line in favor of government over individual freedom in the social rights arena because the results are typically consistent with conservative political positions.