Morse, School Speech, and Originalism

Abstract

Originalism is a term used modernly to describe a particular and controversial approach to constitutional interpretation in which the text of the document is understood and applied as "intelligent and informed people of the time" of enactment would have understood and applied it. Originalism's most ardent proponents on the current United States Supreme Court include Justice Antonin Scalia and, with increasing frequency and rigidity, Justice Clarence Thomas. In Morse v. Frederick, the Court's most recent foray into First and Fourteenth Amendment protection of student speech in a public school setting, these two Justices seem to part company over the relevance and utility of an originalist analysis. Justice Thomas wrote a separate concurring opinion in which he argues that a commitment to originalism compels a fundamental reexamination of whether public school students enjoy any free speech rights at all. This Essay examines the Court's various opinions in Morse, focusing in particular on the lessons about originalism - in the school speech setting and more generally - that might be gleaned from a careful look at Justice Thomas's opinion and its failure to attract support even from other originalist-minded Justices.