Toobin, who disagrees strongly with Thomas about most matters constitutional, political and cultural, does a good job of showing why Thomas is a formidable judicial thinker. The interpretative concept of “originalism” is sometimes confounded with a simplistic literal interpretation of the words of the Constitution. Thomas argues that to understand what the Constitution meant to the framers, one needs to do more than read the words on the page and look to see how Samuel Johnson and perhaps Noah Webster defined them in their dictionaries.
Thomas is not a fundamentalist reading the Constitution au pied de la lettre; the original intent of the founders can be established only after research and reflection. The Eighth Amendment ban on “cruel and unusual punishment” can only be understood if one understands the thought of the period, the types of punishment then widely used, and the political and cultural traditions that shaped the thinking of the founders on questions of justice and punishment. One then takes that understanding, however tentative, and applies it to the circumstances of a given case today.
It is not the only possible way to read the Constitution, but it is a very interesting one and it may be the only politically sustainable way for the Court to read it in a contentious and divided country. Without some rule of interpretation that the average person can understand and accept as legitimate, the Court gradually loses legitimacy in the public eye. The originalist interpretation, whatever objections can be made to it intellectually and historically, is politically compelling. It resonates with the American propensity for commonsense reasoning. To say that the Founders meant what they meant and that the first job of a judge is to be faithful to their intent is something that strikes many Americans as sensible, practical and fair.
As Toobin tells the story, the revival of the Second Amendment was the first great triumph of the new approach. Thomas and others assembled a mountain of evidence that convinced increasing numbers of legal scholars that the Second Amendment must be read as conferring an individual right to bear arms — not merely a generic endorsement of the right of each state to maintain a militia. More, this right was intended as political: to check the power of the state to overawe and crush the people. As a result, the once seemingly unstoppable movement toward gun control has gone into reverse gear.
The startling possibility now beginning to dawn on some observers is that these same methods applied to the Tenth Amendment would lead to a much more far reaching revision to constitutional doctrine. The text of the Amendment is simple and short:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The standard interpretation is that this merely restates an assumption that undergirds the Constitution as a whole and so has no special meaning or significance in law. If reading the rest of the Constitution leads you to uphold some act or law as constitutional, this amendment would not affect that judgment. Therefore it can be and usually is ignored. That is certainly what we were told to do with it in the hallowed halls of Pundit High.
But there is another view of this amendment. The Constitution of the United States confers specific, “enumerated” powers on the Congress, and many of the things that Congress does today are not listed among those enumerated powers. On his last day in office, President James Madison vetoed what today we would call an infrastructure bill. He thought the bill was a good idea, that the country needed the infrastructure and that the federal government was the right agency to provide it, but believed that the Constitution he had helped write provided no authority for Congress to act in this way. If Congress wanted to support infrastructure in the various states, the right way to proceed was to get an infrastructure amendment into the Constitution. Barring that, nothing could be done.
Taken seriously today, that approach to the Constitution would change the way Washington does business. Radically. The list of enumerated powers is short and does not include, for example, health care, education, agricultural subsidies, assistance to the hungry or old age pensions. Most of the New Deal and Great Society (with the interesting exception of civil rights laws which enforce the Civil War era amendments) would be struck down. Whole cabinet departments would close.
The federal government would not wither away completely; even on a narrow reading of the commerce clause (the clause that places the regulation of interstate commerce among Congress’ enumerated powers), Washington would exercise considerable authority over the national economy. But the balance between the states and the feds would change, and among other things, our federal tax burdens would fall, but the costs of state government would rise.
This is pretty much a Tea Party wish list, and it is why the Tea Party movement is so strongly identified with originalist interpretations of the Constitution. Unleashing the Tenth Amendment would move the constitutional status quo back towards the early 1930s when the “Nine Old Men” struck down one New Deal law after another. For Toobin and most New Yorker readers, it is hard to imagine an idea that more radically and totally runs against everything they believe.
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