Why “Originalism” Doesn’t Work, Clarence Thomas v. The Warren Court Edition

As we’ve discussed, earlier in this month Clarence Thomas has said explicitly that the Warren Court’s “one person, one vote” decisions were wrongly decided and strongly implied that Gideon v. Wainwright was wrongly decided. Either way, it shows why originalism doesn’t work as a grand theory:

In Gideon v. Wainwright, the Supreme Court in 1963 held that the Sixth Amendment right “to have the assistance of counsel” means that states must provide counsel to defendants facing criminal charges if they cannot afford their own. Anthony Lewis told the story of that case in his bestselling book Gideon’s Trumpet, which was in turn made into a 1980 movie starring Peter Fonda.

In his Luis concurrence, however, Thomas based his Sixth Amendment reading not on Gideon but on Betts v. Brady, the case Gideon overruled. The Sixth Amendment, according to Thomas, “abolished the rule prohibiting representation in felony cases, but was ‘not aimed to compel the State to provide counsel for a defendant.’” While he does not say so explicitly, he seems to be claiming that Gideon was wrong, according to the Constitution’s original meaning, and hence originalists should want it overruled. The state, according to Thomas, may throw people in jail without offering them access to a lawyer—something most criminal defendants cannot afford on their own.

Thomas does not, however, explicitly call for this outcome. Is there any way Gideon can be salvaged under originalism? Perhaps, but this can only be done by draining originalist theory of any meaningful content.

An originalist might respond like this: The Sixth Amendment, as originally understood, protected a negative right to counsel (that is, the state cannot interfere with someone hiring a lawyer of their choice) but not a positive one (the state is not required to provide counsel to anyone who cannot afford one). However, the growing cost of legal representation and the increasing complexity of criminal procedures mean that in 2016 it is not possible for a criminal defendant to receive a fair trial without counsel, even if it were possible in 1789. Therefore, the Sixth Amendment’s right to counsel and/or the 5th and 14th Amendment’s guarantee of the “due process of law” requires the state to provide counsel to criminal defendants who cannot afford one now, even if this was not the case when the amendments were ratified. So the outcome in Gideon, if not its reasoning, can be reconciled with the original understanding. This is how many originalists have concluded that Brown v. Board is consistent with the original understanding, even though most of the framers and ratifiers of the 14th Amendment did not think it forbade school segregation.

This argument is not wrong, precisely. But the problem is that once the “original meaning” of the Constitution is defined at such a high level of abstraction, there’s no meaningful difference between “originalists” and the “living constitutionalists” they deride. History loses any bite, and originalists wind up just doing what everybody else does: applying a broadly worded constitutional principle to the particular circumstances of today.

Thomas’s recent opinions, then, illustrate a fundamental problem with originalism. Either the theory produces unacceptable results that subvert the constitutional principles it purports to uphold, or history loses relevance because abstract principles are applied to contemporary circumstances unknown at the time the relevant provisions were ratified. Either way, originalism doesn’t work. Let’s hope the post-Scalia Court doesn’t end up turning in that direction.