Legal interpretation is often predicated on syllogisms. Syllogisms are essentially two statements in which a conclusion can be drawn from the relationship of the two statements. For example: Fred lives in France. Joan lives in the same country as Fred. Then, Joan must live in France.
Supreme Court Justices Antonin Scalia and Clarence Thomas are self-described “originalists.” Simply stated, an originalist must decide all cases on the original literal meaning of words in the Constitution. Now here is the syllogism.
During a recent session at the Yale Law School, Justice Thomas conceded that the phrase in the Constitution “we the people” did not include blacks at the time of its drafting. As an originalist then Justice Thomas must then conclude that blacks do not fall under the protection of the Constitution. Justice Thomas is black, therefore he is not afforded the protections of the United States Constitution.
Here comes the rub. If Justice Thomas is not a protected class under the Constitution, then why is he on the bench and not out under the scorching sun picking crops as a slave?
Because this result is ludicrous on its face, Justice Thomas goes on to explain that the Constitution had an unwritten “intent” to include people like him in the future. Wait a minute, something doesn’t make sense. Isn’t Justice Thomas an originalist?
So let’s visit that syllogism again. Originalists interpret the Constitution strictly on what was written. Justice Thomas says that at least in this instance, the framers of the Constitution intended to include blacks, even though that was not expressly stated. Then Justice Thomas must not be an originalist.
I think that I am getting a migraine and have to go lie down.