Interpreting the Constitution Justice Thomas Style

Justice Clarence Thomas was confirmed by the United States Senate as a Supreme Court Justice 17 years ago, and he recently gave a speech in New York addressing the current condition of American culture and constitutional interpretation. In fact, both Justice Thomas and Barack Obama recently expressed their views on interpreting the constitution and the role of judges.

In speaking about American culture, Thomas expressed concern that the creed of most Americans today is far different than the past. He worries that Americans now “ask not what you can do for yourself or your country but what your country must do for you.” When John F. Kennedy famously stated, “Ask not what your country can do for you but what you can do for your country,” the people of America understood that specific type of sacrifice and welcomed calls to effectuate change one individual at a time. That was a vastly different culture because, as Thomas stated, it had an appreciation for “delayed gratification . . . something larger . . . perhaps something transcendent.”

Thomas also discussed constitutional interpretation and the approaches that judges can take. “We are neither omniscient nor omnipotent. We are just judges. Like the Wizard of Oz, we are mere mortals.” Thomas concisely stated there are only two approaches to being a judge: The first: “To try to see as best we can the framers’ intentions.” The second: “Make it up.” As Thomas stated, “At least originalism has the advantage of being legitimate and impartial.”

Thomas’ view of constitutional interpretation, otherwise known as “originalism,” requires judges to try as best as they can to determine the framers’ intentions when the document was originally drafted and apply it accordingly. The other view is that of a “living constitution,” which permits judges to apply their own cultural and moral views to create law. In other words, as Thomas stated, it gives judges the green light to “make it up.”

It is far too often that we see judges “make up” the law and, in the process, create rights that never existed or ignore those that as Americans we were guaranteed in the Constitution. The California Supreme Court recently created a “right” to same-sex marriage in California’s Constitution and then, in another Advocates case, the court ignored two doctors’ right to exercise their religion freely in their chosen profession. Justice Thomas challenged us to recognize the sacrifice that democracy requires and not continue to ask what our country must do for us. As judges continue to “make up” our constitutional rights, it has become increasingly more necessary for us to stand up, both in the courtroom and the voting booths.