Tuesday, October 21, 2008

"there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up."


No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Says Justice Clarence Thomas. Ladies and gentlemen, it simply doesn't get any better than that.

Update: Ann Althouse disagrees:

You just conceded that "even most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed," so why do you -- in the same sentence -- call it impartial? With such incoherence showing so plainly on the surface of your remarks, why should we trust your labyrinthine exegesis of the documents from the 18th century?

But, is "impartial" necessarily the complete opposite of "flawed"? I don't think so at all. It seems to me that Justice Thomas is saying that although it has its flaws, it is impartial and that is one of the reasons that it is the best- it screens out partiality.

Update 2: I just started reading the comments, and 3 out of Ann's first 4 agree with me.

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