What normally happens when I start paying particular attention to a particular topic, I just gather data and let it settle until something gels and I have a pattern I can start testing. On this Supreme Court/judicial philosophy thing, Justice Breyers' latest book was the coagulant.

Among the things that fell into place was some of Chief Justice Roberts' testimony at his nomination hearings. The particular statements were made in response to Sen. Grassley.

ROBERTS: Well, I think it's very important to define these terms. Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply.

However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent.

What gelled, and I have not doublechecked this, is that by my memory there is only one statement in the Constitution that speaks to intent.

"We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain establish this Constitution for the United States of America."

Everything else is an imperitive, designed to implement that intent for the benefit of those considered citizens.

ROBERTS: I think of, in particular, the Fourth (sic) Amendment and the equal protection clause. There are some who may think they're being originalists who will tell you, "Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to."

But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally.

That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it.

That is an originalist view because you're looking at the original intent as expressed in the words that they chose. And their intent was to use broad language, not to use narrow language.

Okay, this isn't a constitutional point, but that they intended to use broad language actually isn't a good sign. The broader the language that comes out of a compromise, the greater the distance in the positions all parties still hold. The First Law of Negotiations is, discussion shall continue until the contract has sufficient ambiguity to allow all sides to claim victory.

We're dealing with law though, which means we actually have nothing to work with but words. A little knowledge of history, humans and the aforementioned First Law brings you to a wholly different understanding of the intent behind the word choice in the Constitution than a tabula rasa textual analysis approach does. Textual anaylsis is the currently accepted approach though, so broad language...language like

"We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain establish this Constitution for the United States of America."

By this standard, the preamble is of critical importance. It directly states the intent of the authors of the document, the intent of the Constitution, the intended purpose of the government itself.