“Let me put it this way; 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.”
I agree with that. Apparently, nobody who either picks or votes on nominees for any courts at any level agree. They seem mostly to prefer justices who will come to the "right" conclusions, then figure out an argument to support that. Which is easy for lawyers to do, as they are trained in this art.
But another way to look at it is that the Founders tried to establish a Constitution on *principles* that would yield the "right" results.
They included the proviso that future generations could argue the point, and with the presumed wisdom of hindsight, amend the Constitution in light of new insights. They didn't make it easy to amend the Constitution, because they feared (from experience) the populist rush to judgement of political enthusiasms, especially ones inflated with the aid of political and partisan pressure.
We, those future generations, have turned out to be impatient with considered judgement, and keep finding ways around the Constitution instead. Interpretation in light of new insights is the most popular one currently. Simply ignoring the plain intent of the Constitution is often popular too -- just look at the First Amendment, which flatly says "Congress shall make NO LAWS," then haul out a hefty volume of Congressional restrictions, aids, controls, and interferences with the freedom of speech and of the press. All they needed was to invent mumbo jumbo about how radio, and later TV, were not covered under the Constitution because the airwaves were "owned" by "the people" and they were wide open to whatever mischief they wished. And that's just the First Amendment. Any libertarian could cite other examples now widely accepted as appropriate roles for a government that was, in the Constitution, apparently (per the words) but not actually (per the laws since passed) forbidden to engage, or not given the authority to meddle in.
Got a Constitution that limits your power, Mr. Politician and Mr. Bureaucrat? Nooo problemo! All you need is excuses why the plain language of the Constitution doesn't apply, and you can exercise all the power you wish, in every aspect of the private lives of citizens! Power given you by -- you! No Constitution need apply!
It's an ongoing tragedy that Thomas, one of the best and wisest and most focussed Supreme Court justices we've ever had, continues to suffer from the calumnies and slanders of the past.
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