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"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."

Says Justice Clarence Thomas. Of course, I don't believe that. Do you? Really?

Does Thomas? Really? He says this:

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right.

Fine, yes. So far so good. There's no controversy over that.

... 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.

Now, that is controversial, yet all we have here is assertion.

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.

But you haven't excluded other interpretations that might also be legitimate. And as for impartiality, where did you prove that? 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?

(Via Jonathan Adler.)

Full post as published by Althouse on October 20, 2008 (boomark / email).