Justice Clarence Thomas’s eye-catching February 25 dissent in a prison-beating case left one thing a bit unclear. Suppose that instead of just loosening a few of the handcuffed prisoner’s teeth and mussing up his face while their supervisor was admonishing them "not to have too much fun," the two Louisiana penitentiary guards had gotten a little bit rough.

Suppose that they had broken both his legs, or stretched him out on a medieval rack, or torn out his fingernails, or cut off his hand, Saudi-style, or locked him naked in a freezing room.

Would that be "cruel and unusual punishment"?

No way, Thomas and his ideological mentor Antonin Scalia seem at first to suggest in Hudson v. McMillian: The Eighth Amendment was conceived two centuries ago only as a protection against punishments meted out by judges and legislatures-not against anything done to a convict once arrived at prison.

As history, that may be plausible. As constitutional law for 1992, it’s hard to stomach.

Which is why Thomas and Scalia don’t really press the point. Instead, they premise most of thei dissent on narrower grounds, indicating that they might uphold Keith Hudson’s $800 damage aware if he had suffered "serious injury."

In doing so, they expose the flaw at the heart of the "originalist" jurisprudence of which Scalia and Robert Bork are the guru’s, Thomas is an awkward apprentice, Chief Justice William Rehnquist a dabbler, and Ed Meese was once mass-marketer:

Taken to its logical conclusions, originalism leads to results intolerable even to its most ardent expositors.

These results would include constitutional indifference not only to the torture of convicts, but also to most forms of racial discrimination, ranging from state-enforced segregation of black children (the norm when the 14th Amendment was adopted) to quotas that discriminate against white males.

Unstinting originalism might also (as Meese once hinted) require overruling the dozens of precedents since 1925 holding that the adoption in 1868 of the 14th Amendment had "incorporated" most provisions of the Bill of Rights, applying them against the states. As a historical matter, the incorporation doctrine is at best a stretch.

Indeed, real originalism would virtually end judicial enforcement of the Bill of Rights. For while Thomas laments "the pervasive view that the Federal Constitution must address all ills in our society," the fact is that for the first 66 years, the Bill of Rights was not used to address any of our ills.

It was not until 1857 that the Supreme Court first found a law contrary to the Bill of Rights. (The winner: a slaveholder claiming that the Missouri Compromise deprived him of his Fifth Amendment right to take his "property"-one Dred Scott-wherever he pleased, in chains.)

No current exponent of originalism wants (or confesses to wanting) to do anything as radical as overruling Brown v. Board of Education or getting the Bill of Rights off the backs of the states.

Rather, while bashing as judicial usurpations those non-originalist precedents they find uncongenial, the originalists cast their dogma aside when it leads where they don’t want to follow.

This is not an original sin. All constitutionalists do something similar, because all doctrines lead to intolerable results if carried to extremes. Indeed, originalism has its charms as an antidote to the "judicial imperialism" (Bork’s coinage) and a-word-means-what-I-say-it-means "interpretations" cooked up by some of the loosy-goosy liberal crowd.

But the selectivity of the originalists’ originalism does deflate their pretensions to standing above the kinds of politically inspired value judgments that they so deplore in others.

Hudson v. McMillian is a case in point. Thomas begins by noting with distaste the majority’s resort (in an opinion by Justice Sandra Day O’Connor, joined by, among others, Rehnquist) to "what it considers ‘the evolving standards of decency that mark the progress of a maturing society.’ "

The newest justice asserts that for some 185 years, judges and commentators "simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment"-including, one presumes, torture. Rather, it was seen "as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might be fall a prisoner during incarceration."

This happy state of affairs ended in 1976, Thomas complains, when the Court "cut the Eighth Amendment loose from its historical moorings" by holding that cruel and unusual punishment of prison inmates is "cruel and unusual punishment."

So do Thomas and Scalia call for a return to the good old days, when guards were free to brutalize prisoners without irksome intermeddling by federal judges?

Not exactly. After questioning the legitimacy of the modern Eighth Amendment precedents, Thomas turns to the more pedestrian task of distinguishing Hudson’s case from them, and arguing that he should lose because a magistrate had found no "serious injury."

Never mind the loosened teeth, swollen face, and cracked dental plate-nothing serious about that. This from the man who so movingly told the Senate Judiciary Committee of his onetime fear of being "picked up and put on the chain gang just for standing on the corner." This from the judge who recalled gazing out on incoming busloads of black prisoners and thinking, "But for the grace of God, there go I."

In fairness, Thomas’s "serious injury" test might be defended as a rough cut at separating wheat from chaff-cases that courts should examine closely from claims likely to be frivolous. Thomas insists his test would provide redress for prisoners put through agonizing tortures that leave no lasting scars. Glad to hear it.

He even accuses O’Connor of making it too hard for future prisoners who are seriously injured to sue. Noting that her opinion imposes on prisoner plaintiffs the onerous burden of proving the guards acted "maliciously and sadistically" (could that be why Rehnquist signed on?). Thomas says a seriously injured prisoner should not have to show such a high level of culpability. Good point.

But just a minute, Justice Thomas. Are you suggesting that you would have coddled Hudson’s claim if he had had a "serious injury"? What about the framers’ original intent to let guards brutalize prisoners to their hearts’ content, except insofar as state laws may restrain them? If Louisiana decides to use torture devices to keep prisoners in line, who is Clarence Thomas to stand in the way? Are you an originalist, or are you going to cut and run whenever the boys start breaking a little china?

What we have here. Justice Thomas, is a failure to communicate.

In defense of Thomas’ modified limited onginalism, a devotee of judicial restraint might note that at least it shows more deference to other branches of government than the pastiche of pushy preachments patched together by the liberal activists.

Which brings us back to reverse discrimination, and to a Scalia-like decision written by Thomas that was belatedly released by the U.S. Court of Appeals for the D.C. Circuit last month.

Straining unconvincingly to get around a 1990 Supreme Court precedent, Thomas invoked the Fifth Amendment to strike down a congressionally approved federal preference for women in broadcast licensing.

Now, if one thing is utterly clear about the original intent of the Fifth Amendment-more clear, for example, than the historical invalidity of the Dred Scott interpretation-it is that those who adopted it in 1791 had not the slightest intention of banning sex (or race) discrimination, reverse or otherwise, by the federal government.

Undeterred by this awkward fact, originalists like Scalia and Thomas, in their zeal to wipe out affirmative-action preferences, are showing a bold indifference to original intent that rivals the activism of Roe v. Wade.

Judicial restraint? Come now. We are all judicial activists now, as someone once said.

Another way of looking at it is that we are all-those of us looking for ways to legitimize the designation of nine politically appointed, squabbling mortals in black robes as our bulwark against oppression-groping for a certitude unattainable in this world. We spin and refine theories to enshrine the values we most cherish in the Constitution’s majestic generalities. What else can we do? Abolish judicial review?

In this, as in many things, ideology is no substitute for wisdom and humility.

Nobody said it better than Learned Hand, when he said, "The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women."