Garrett Epps: What Clarence Thomas's Video-Games Dissent Tells Us About 'Originalism.'
I had some similar reactions to Justice Thomas’ dissent (minus the general scorn for Thomas and originalism that Epps expresses), as noted here. Epps is right, I think, to characterize Thomas’ dissent as amounting to something like (as Epps puts it) a claim that “even if there is no evidence about the legal issue at hand, we all know what kind of people the Framers were, and thus we all know what they would have thought of this issue.”
What I conclude, though, is not that originalism is meritless or disingenuous (as Epps suggests) but that it needs a clearer focus on methodology. In particular, originalism should be skeptical of claims that try to expand or contract the Constitution’s text on the basis of a generalized “intent” or “purpose” of the framers. Such arguments can be persuasive at times, but too often they are no more than guesses about what the framers might have been thinking (or might have thought about an issue, had they thought about it). And in making these guesses, it’s all too easy to subconsciously import one’s own view of the merits of a particular issue.
In this sense I would add that Justice Thomas’ video game dissent shares some features of two other claims recently discussed here, the narrow view of birthright citizenship and the supposed unconstitutionality of the public debt limit. All of them seem to feature appeals to generalized purpose or intent over a close reading of the text and its meaning at the time of adoption, with their conclusions as to generalized purpose or intent seeming hardly inevitable.
Posted at 9:00 AM