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Bench Memos

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Clarence Thomas, Man and Justice



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If you didn’t listen to Bill Bennett’s terrific interview with Clarence Thomas during this last half hour, I’m sure that it will be available later on the “Morning in America” website.  And check out the WSJ column of former Thomas clerk John Yoo, on the jurisprudence of his old boss.  I agree with Yoo that Thomas “is the justice most committed to the principle that the Constitution today means what the Framers thought it meant.”  I would demur, however, from Yoo’s implicit proposition that originalism inexorably produces results like these: that “the use of thermal imaging technology by police in the street to scan for marijuana in homes violates the Constitution’s ban on unreasonable searches”; or that “harsher criminal sentences . . . based on facts found by judges rather than juries” offend the Constitution; or that “advertising and other commercial speech [should] receive the same rights as political speech.”  An originalist could say all these things, as Thomas does; another originalist could contradict every one of them.  The question would then be whose originalism amounts to better legal-historical reasoning.  But at least the argument would take place on the appropriate ground.



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