Oh goodness, this is just silly. Any high school civics student can understand what Justice Thomas is saying about originalism even though the author of this article plainly cannot. All you need to do is actually read the First Amendment. Notice those first 5 words? "Congress shall make no law"? Notice that it does not say that "States shall make no law"? Notice that it does not say that "School boards shall make no law"? It's pretty clear who the First Amendment was aimed at. Congress. And it's pretty clear that our Constitutional understanding has never changed, since that word, "Congress" is still the only word in the First Amendment that tells us to whom the right of free speech runs against. And, as Sen. Leahy, repeatedly reminds us on the Senate floor, the First Amendment has never been amended. It still says, "Congress". Not school boards. So that is really not too hard to understand, from an originalist's point of view is it? You just read the text.

This notion that Thomas is radical but principled is half right. To be precise, the first half is right: He is radical. But he does not seem very principled. Consider just two cases from the end of this past term, both involving public schools. One was Morse v. Frederick, the so-called "Bong Hits 4 Jesus" case, and the other was Parents Involved v. Seattle Schools, the voluntary integration case. Thomas wrote a concurring opinion in both cases. In the first, he made the bold claim that students simply do not have any right to free speech in school. Why? Because those who framed the relevant constitutional language would not have expected students to have First Amendment rights while in school.

And as for the article's claim that the First Amendment was somehow magically amended at the time of the adoption of the 14th Amendment, just after the Civil War (despite the inconvenient fact that the 14th Amendment makes no reference to the First Amendment or to the Bill of Rights), well, that claim is simply daft. Even the most liberal members of the Supreme Court have never claimed that. As late as the 1920's and 1930's, the Court was handing down decisions repeating the common understanding (because it tracks the actual language of the Constitution) that the First Amendment only applies to Congressional enactments. It is only with the Warren Court, nearly a century after the adoption of the 14th Amendment, that the claim that the later Amendment amends the earlier one was propounded by the Supreme Court. That may is of course the prevailing view of Constitutional jurisprudence now, but you can hardly charge an originalist with inconsistency for simply following the understanding -- based on the actual language of the Constitution -- that prevailed for all of our nation's history except the last few decades.

at the time of the adoption of the "the First Amendment was drafted. Even by the time the 14th Amendment was adopted, making the First Amendment applicable to the states, public schools were just getting started. Few students attended school for more than five years; public high schools were virtually nonexistent; and compulsory education was still decades away.

So your argument is that the Bill of Rights doesn't apply to State governments? Interesting.

Does that mean that every decision based on 14th Amendment jurisprudence should be overturned?

I assume you'll join me in proposing and fighting for a new amendment that does exactly what you claim the 14th fails to do, so as not to eviscerate the principles that the framers intended to reserve for all Americans by letting State governments nullify the Bill of Rights.