The Corner

More Thomas and Scalia

Randy Barnett e-mails:

When it comes to constitutional interpretation, Thomas

is concerned almost exclusively with the original meaning of the text at

the time of the founding (and sometimes the original intentions of the

founders as well) or the original meaning of an amendment; Scalia is

more willing to reshape this meaning in light of what our “tradition”

which means how the Constitution came to be viewed from then until now.

For Scalia, tradition after ratification plays a much more important

role, in operation sometimes appearing to trump his concern for original

meaning. I think this is because he is trying to find more definite

content than he thinks is in the text, and root this content somehow in

history rather than in what he views as judicial fiat. Thomas (like

Lincoln) is more inclined to read the original meaning of the

Constitution in light of the prior Declaration of Independence than

subsequent tradition, perhaps because of his sensitivity about slavery.

More importantly, because of his commitment to “the rule of law as the

law of rules” Scalia is quite willing to leave whole passages of the

Constitution unenforced by courts (whatever their original meaning)

because they do not seem “rule-like” enough to constrain the decisions

of judges, e.g. the Ninth Amendment and Privileges or Immunities Clause

of the 14th. Scalia views the proper function of judging as strict

order taking from the political branches and, where the orders are not

specific enough, he would have judges ignore them and leave the

protection of these liberties to the political process. Thomas is much

more willing to judicially apply the more open-ended provisions,

especially the Privileges or Immunities Clause, and protect unenumerated

liberties from the political process. Indeed, he has said they should

be protected on a par with enumerated rights.

I should add that, while neither takes exactly the same approach to

interpretation as I would, Justice Thomas comes far closer than Justice

Scalia so I am sensitive to the differences between them. I do not

think even Supreme Court Justices should ignore provisions of the text

because they fail to meet their vision of the “rule of law” any more

than passages should be ignored for failing to measure up to a Justice’s

vision of “justice.”

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