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.”