Prof. Lee Strang has published an article in the University of Detroit Mercy Law Review arguing that Justice Antonin Scalia is more faithful to the doctrine of “original intent” than is Justice Clarence Thomas. The argument, though, seems pretty strange to me. Strang’s logic is as follows: the original intent of the framers was for the courts to follow precedent. But Justice Thomas—believing much of the precedent to have strayed from the original meaning of the Constitution—has often favored overturning precedents, while Justice Scalia has been willing to stick with precedents, even when they have diverged from the Constitution’s original meaning. Therefore, Scalia is the real originalist.
I think the key to this riddle is pretty easy: Thomas believes that originalism can trump precedent. Not always, to be sure—and Thomas has been willing to stick with bad precedent when he believes that worse consequences would flow from overruling it. But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach, but it’s logically valid. On the contrary, I know of no evidence that the framers believed that precedents should be clung to even where it contradicts the Constitution’s meaning. Strang’s only argument on his point is to say that the phrase “the Judicial Power” in Article III, section 1 of the Constitution “requires federal judges to give constitutional precedent, including nonoriginalist precedent, ‘significant respect.’” But even if one accepts this, it hardly requires a justice to stick with a constitutional interpretation that he believes to be wrong. To read it that strongly would make precedent trump even the Constitution—and that would mean that whatever the Court says just is what the Constitution means—and that, of course, contradicts the basic premise of originalism.
Justice Scalia himself admits he’s only a “faint-hearted originalist.” And his record proves this. His acceptance of the Slaughter-House Cases is proof enough of that. I think, too, that Justice Thomas’ decisions have at times strayed from the original meaning of the Constitution. And none of this is to advocate for originalism itself. I’m just saying that I don’t think Thomas’ attitude toward precedent undercuts his credentials as an originalist.