Balkinization  

Wednesday, July 11, 2007

Clarence Thomas's Originalism

JB

Justice Clarence Thomas is well known for his claim that we should be faithful to the Constitution's original meaning. This often leads him to results contrary with the rest of his fellow Justices, including Justice Scalia, who also claims to be an originalist, but of the "faint-hearted" variety.

But there is more than one version of originalism. Original meaning originalism asks about the meaning of the words in constitutional text to the average person at the time of adoption. Original expected application asks how people at the time of adoption would have understood the text would be applied. Original understanding is usually some form of expectations based originalism-- it asks how the text's meaning and its likely application would have been generally understood at the time of adoption. Original intention asks what some relevant group of persons at the time of adoption intended the law to be or how it should be applied.

Thomas portrays himself as an original meaning originalist. However, I have argued that many original meaning originalists actually conflate original meaning with original expected application. That is, they say they are focused on original meaning, but in fact they focus on original expected applications to decide what the principles underlying the text are and how they should be applied. I also argue that living constitutionalists often make the same mistake-- they too often assume that to be an originalist means you must accept the original expected application.

The recent case of Morse v. Frederick (the Bong Hits 4 Jesus case) offers an example of this conflation in Thomas's jurisprudence. Thomas often slides back and forth between arguments from original meaning and original application. He does not clearly distinguish why he does so. Here is his concurrence in Morse, explaining why he thinks public school students have no rights under the First Amendment.

The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, "there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); see also Cox v. Louisiana, 379 U.S. 536, 554, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965). In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800's. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common. W. Reese, America's Public Schools: From the Common School to "No Child Left Behind" 11-12 (2005) (hereinafter Reese). If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. n1 They did not.

n1. Although the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment, most state constitutions included free-speech guarantees during the period when public education expanded. E.g., Cal. Const., Art. I, § 9 (1849); Conn. Const., Art. I, § 5 (1818); Ind. Const., Art. I, § 9 (1816).

Note that Thomas does not offer us an argument about the original meaning of the first amendment. Instead he asks how people understood the amendment would be applied to public schools in 1789. Since the First Amendment didn't even apply to the states in 1789, it's somewhat hard to figure that out. So instead Thomas turns to how people expected analogous state provisions (which may or may not have had identical language) would have been applied, including examples from the early to middle 19th century.

Thomas's argument is that the First Amendment was not intended to change the common law idea of in loco parentis, the notion that schools had the right to enforce rules and discipline against students in place of the parents. (The notion that the schools stood in place of the parent, of course, could also be used to justify the use of corporal punishment against an unruly student.)

My view is that all this history is quite interesting but mostly beside the point in deciding a case like Morse. We do not live in a world with the same assumptions about the power of school officials over their students, just as we do not think that the original understanding of libel, profanity, sexuality explicit speech or commercial speech should apply either. Our modern doctrines are consistent with original meaning of "the freedom of speech" but not necessarily with the original expected application. Thomas's reliance on the original understanding has all of the familiar difficulties of expectations based originalism. If we take it seriously throughout the corpus of constitutional doctrine, it leads to results that would be politically embarrassing.

Not surprisingly, Thomas often invokes his concepts of originalism selectively, pulling them out when they buttress results he likes and saying nothing about originalism when it would lead to results he does not like. For example, Thomas does not talk about the original meaning or the original understanding of the First Amendment in many First Amendment cases where he would prefer a more libertarian result, for example, in case involving abortion protesters, commercial speech and campaign finance. Perhaps one could offer either original meaning or original understanding arguments for these cases. (Although original understanding, which he uses in Morse, might be somewhat more difficult). But Thomas does not even bother to try.

For years people have complained that Thomas has not taken seriously the evidence of the Reconstruction era Congress on issues of colorblindness. The Congress that passed the Fourteenth Amendment did not adhere to the principle of colorblindness. They adhered to the principle of civil equality. The language of the Fourteenth Amendment reflects this. It does not mention color or race, but it does talk about the privileges or immunities of citizens of the United States. The reason for this is that in 1866 the Congress wanted something more and less than colorblindness. They did not want to give blacks the vote. And they also passed legislation that gave benefits to "colored" persons. (For more on this history, see here, here and here.)

In Parents Involved, Thomas finally refers to this history obliquely in a footnote in his concurrence. He says

The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. Post, at 28–29. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 28 (citing Slaughter-House Cases, 16 Wall. 36, 71–72 (1873)). What the dissent fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution.
It's a nice try, but it won't work. Congressional legislation during this period was directed not only at recently freed slaves, but also at free blacks whose families may have been free for a generation or more. The Reconstruction Congress responded to widespread societal discrimination against blacks-- something that the plurality in Parents Involved would forbid in the name of the same Fourteenth Amendment that the Reconstruction Congress passed. Moreover, the statutes were inconsistent with the current Court's precedents in other ways-- they were not narrowly tailored to remedy only previous acts of discrimination by Congress or by state actors.

Even so, I'm happy that Thomas is starting to come to terms, even in the smallest of ways, with the history of the Reconstruction Amendments. He has offered his opinions repeatedly about what the Fourteenth Amendment means without giving much evidence that he has studied the Amendment's actual history carefully. In doing so, he is not engaged in originalism. He is engaged in bad originalism.

Comments:

Professor Balkin: But there is more than one version of originalism...

Respectfully, that's totally missing the larger context. When a Thomas or a Scalia invokes "originalism" or "majoritarianism" or whatever pet terms they're tossing about du jour, it isn't from any desire to accurately portray their positions, but rather to foreclose analysis in the minds of as many as can be swayed. The single greatest error and weakness of progressives is this continued insistence on treating rhetoric as reasoning in good faith. Treating ill-will enemies as good-faith players is a dangerous mistake.
 

Jack: You might have added to your list Wisconsin Right to Life: What are the odds that *any* of the variants of originalism would have given corporations any First Amendment rights, let alone the right to use treasury funds rather than designated, segegrated funds for certain expressive activities?
 

Until the 1830s, public mass education was not even an issue -- of course, Thomas and our follow originalists are often forced to "hypothetically" assume later-developed constructs, such as compulsory schooling, were in place at the time and determine how the rules would apply -- from Wikipedia:

Education reformers such as Horace Mann, helped jump start the common school movement. In 1837, Mann became the first Secretary of the Board of Education for Massachusetts. Mann was at the forefront in promoting the institution of common schools. His influence on education in Massachusetts soon spread to the U.S. as a whole. Not until 1870, however, were all states provided free elementary schooling.
 

Professor Balkin:

[T]here is more than one version of originalism. Original meaning originalism asks about the meaning of the words in constitutional text to the average person at the time of adoption. Original expected application asks how people at the time of adoption would have understood the text would be applied....

Thomas portrays himself as an original meaning originalist. However, I have argued that many original meaning originalists actually conflate original meaning with original expected application. That is, they say they are focused on original meaning, but in fact they focus on original expected applications to decide what the principles underlying the text are and how they should be applied.


What is the basis for the distinction between your categories of original meaning and original expected application?

Both categories appear to be text based with the People at the time of the ratification defining the meaning of the text.

Are you arguing that the People at the time of the ratification had different definitions for the text standing alone as opposed to when it was applied to a set of facts?

Your point appears to me to be a distinction without a real difference.

Thank you in advance for any guidance you could provide here.
 

Dear Bart:

I've written a couple of articles on this distinction, which I've linked to above. You can also find them here and here. I've argued that although original expected application is not a plausible theory of constitutional interpretation, original meaning originalism is, and, in fact, it is the best approach.
 

Not until 1870, however, were all states provided free elementary schooling.

It's interesting to think that evidence from the 1870s qualifies as an indicator of original application 100 years previously. Indeed, Thomas cited one case from 1915 in support of his view (a case which, btw, didn't even raise a free speech issue). This form of "originalism" sure looks a lot like living constitutionalism.
 

Professor Balkin:

Thank you for the links. I look forward to reading your work.
 

Not at all, Mr. Field -- as I noted, Thomas and follow originalists "hypothetically" assumed that such a later-developed construct as compulsory schooling were in place and then simply determine how the rules would have applied back then -- what am I not explaining clearly?
 

Thomas and follow originalists "hypothetically" assumed that such a later-developed construct as compulsory schooling were in place and then simply determine how the rules would have applied back then -- what am I not explaining clearly?

I think you explained exactly what Thomas did. It just makes no sense whatsoever. "Nunc pro tunc" is not a form of originalism, as far as I know.
 

On originalism, and having done battle with Scalia on this when he visited my law school, it always baffles me when the Framers and those who voted for the Constitution are termed "the people". Scalia remarked to me that "the People adopted it". I was baffled by his comment as he is an educated person who is clearly aware of the circumstances of the United States at that time. I can live with the Constitution being legitimized by the limited process of approval in place at that time - but going beyond that to then say that the views on the text of that narrow group at the time are all that is to be looked at just baffles me. I recognize we can read them for meaning and they may have special weight in letting us know what they were struggling about. But, those alive even today who read the struggles and think in fresh ways about those issues help inform my understanding. The death of the last Framer appears to be a pretty arbitrary date at which we should stop looking at ideas on the text.

I mean it is like I am not permitted to look at Madison and say - gee this guy who didn't free his slaves when he died is not to me the be all and end all. He is of interest as far as he goes but I think that Frederick Douglass might have said something 80 years later that resonates more powerfully.

On the colorblind Constitution, it seems to me that this is a peculiarly American discussion of our relationship with the peculiar institution. As Randy Barnett has highlighted, the interstate commerce clause and other things were put in place precisely to keep the Federal Government out of the slave trade. Then there are those who say that slaves were not only blacks so the Constitution is colorblind and it just seems to me that it is an effort to mask what was patently clear - that enslavement of blacks was a motor of the United States and a source of great wealth and those with power were willing to preserve it in the Constitution. One of those persons was Barbary my ancestor born in 1787 and sold into slavery in 1800. Draining the Constitution of that significant part of the American experience seems very suspect to me. Is it so hard to recognize that the document enshrined an enormous evil and we fought a civil war to undo that?

As one of my students said, to speak of colorblind constitution is to make me invisible.

I understand that Thomas will be putting out a book now on what he thinks on all things affirmative action and all that. I will take a look at it.

It just seems that originalism alone just like any other system alone is a damaged form of analysis. Each approach is a lens. Now some might say that a "looking at everything" approach is a damaged approach also and that all approaches are equally and on and on. I agree we can end up in a cycle - but it seems bizarre that we would limit ourselves in such a manner not looking forward or backward from that time.

The Constitution is not some document that was handed to us by some higher being. It is the work of a few persons. We read it and we interpret it to best of our ability. No need for blinkers - especially as the Framers excluded so many from being "People" who might have a word to say.

Best,
Ben
 

Benjamin Davis: I was baffled by [Supreme Court Justice Scalia's] comment as he is an educated person who is clearly aware of the circumstances of the United States at that time.

Ben, this really ties in with my original comment, that the greatest error progressives are making, day in and day out, is to treat a Scalia or a Thomas or a Hannity or an O'Reilly as a good-faith interlocutor. I invite you to take a look at this Scalia inspired rant I wrote in 2005 after the McCreary decision came down. While it's a little foamy for this venue, I think you will appreciate the points made, and how they serve to highlight the larger issue of accurately assessing the difference between a fellow citizen with whom we legitimately disagree versus a partisan hack looking only to gore your ox. It's vital we adopt different methods for the different categories.

(Not that I mean to suggest you could do much in a forum with a Supreme Court Justice, demands of respect for office and decorum being what they are. Wish I'd been there...)

Peace.
(Would follow up with a private inquiry about where you teach &c but your blogger profile has no contact info. If you're willing you can reach me at beau AT oblios-cap DOT com)
 

I still do not understand how "originalism" avoids the intentional fallacy. Moreover, since hermeneutics is not taught in law schools, whence cometh these "literary theories?" Granted, our Constitution and Laws are written in a language, English to be precise, but most jurists don't have a clue about linguistic uses, sense, or reference. Since most law courses are taught outside their historical context, it would seem that all these theories are simply excuses to "mean what we say."

At some point, we have to avoid all this casuistry. We have to determine whether our linguistic use is essentialist or nominalist. We have to understand a word's etymology, it evolutionary use, its changing senses, different contexts, and evolving applications. Not the Richard Rorty relativist nonsense, much less the postmodernist bullshit (John Searle's "postmodernism gives bullshit a bad name"). None of the psycho-babble, either.

Odd, that lawyers do not study any language courses nor are they required to take logic, deductive, inductive, or fallacious -- esp. since our Constitution, Laws, and their applications would seem to require such "basics." Obviously, anyone who appeals to "originalism" has not studied hermeneutics, either.

It's not unlike a Doctor of Medicine who studies pharmacology, surgery, differential diagnoses, etc., but never studies human anatomy, physiology, and biochemistry.

No wonder we get the decisions we get. Jurists lack logic, linguistics, commit fallacies, cannot distinguish between sense and reference, much less use, and praise Richard Rorty as one of the three greatest philosophers of all time. Breathtakingly inane. But it does explain.
 

The Gay Species: ...whence cometh these "literary theories?"

Y'just don't see "hermeneutics" often enough in conversation these days. ;)

Thoughts: While I wouldn't expect, say, a Charles or a Bart to competently diagram a simple S-V-O like "Charles admires Bart," I think it's fair to assume the head of the Yale Information Society Project and author of works such as Cultural Software: A Theory of Ideology and The Laws of Change: I Ching and the Philosophy of Life holds himself to a higher standard. Don't know about you, but I'm here to rub ideological elbows with our hosts much more than for the guilty pleasure of spanking their more obnoxious guests.

Peace.
(btw: If your blog or profile list your email I've failed to find it. Would love to carry on this conversation off-blog...)
 

Professor Balkin,

Isn't "meaning" defined by the set of all applications consistent with that meaning? Hence, if we are to maintain the original meaning, we must also maintain the original applications, albeit, in their original context.

Thus, expected applications can be informative, though not necessarily limiting, on the actual meaning encoded in law.

Most of your examples related to free speech seem to have an inherently cultural component to them (e.g. profanity). Is it fair to conclude that your actual focus regarding the difference between "meaning" and "expected application" is the degree to which codified principles are originally intended or expected to be relative to the changing culture?
 

Prof. Balkin,

If Justice Thomas had attempted an argument about the original meaning of the first amendment, he might have had to acknowledge that the public schools of the 1800s would have abused the religious rights of himself and the four other Catholics in the Morse v. Frederick majority. But I may be doing Thomas an injustice -- perhaps he would see no constitutional harm in being forced to recite Protestant prayers. There were no public schools at the Founding, so we don't know what the Founders thought of schoolchildren's rights, but we have a fair amount of evidence regarding what many of them thought of Catholics, and how they and their fellow Protestants put those feelings into action as public policy.
 

Bart:

I can't speak for Professor Balkin, but I suppose the problem is this.

The Fourteenth Amendment, which applied the First Amendment to the states, was adopted in the 1860's. Thus, the relevant originalism is what the original meaning was at the time of the 1860's, not the 1780's. You can't meaningfully posit how the First Amendment was supposed to apply to a state-regulated public school when the amendment wasn't intended to deal with state-operated entities at all and the federal government wasn't operating any public schools.

But, Thomas wants to make his point using cases from the mid-19th Century, before the 14th Amendment was adopted. So he looks at what states were doing back then with their own constitutions and extrapolates that this was the expected application of the 14th Amendment.

That may or may not be the case, but once you do that, you are shifting interpretation strategies. The MEANING of the 14th Amendment was to require state governments to respect, among other things, rights of free speech, and you would need to look at what free speech meant to the nation as a whole as of the 1860's to determine this. What free speech meant in particular states 30 years earlier isn't particularly relevant.

So Thomas isn't really adopting a consistent interpretative strategy here.
 

Professor:
I think your distinction well taken but I am somewhat chagrined by the rather nasty and churlish postings of your blogging entourage. Given the difficult task of weighing the value of following originalism-consistent results with stare decisis, one cannot expect a justice's votes perfectly to coincide with the dictates of an originalist analysis. Further, judges are human beings and as such are susceptible to mistakes, even originalist mistakes (gasp!), but that is no reason to reject originalism altogether. And just what precisely is being offered on the other side? Justice Breyer's purposivism? Some redivivus version of Justice Douglas's penumbral emanations? Egads! If we do not wish to be ruled by some nine-headed Caesar giving its collective thumbs up or thumbs done to whatever passes before it (thank you Nino), then I cannot imagine a better technique to avoiding that lamentable result than originalism. Unless we wish to dispense with democracy.
 

Kevin: "Isn't 'meaning' defined by the set of all applications consistent with that meaning? Hence, if we are to maintain the original meaning, we must also maintain the original applications, albeit, in their original context."

I would define meaning as a function from possible worlds to applications. Two words can have the same application in this world, but if they have different applications in some possible world, then they have different meanings.

The reason the framers can be wrong about the application of their provision, even if they know the meaning of their words, is that original applications might depend on facts about which the framers were wrong.

For more, see here.

I haven't looked carefully at Morse yet, but obviously original expected applications are some indication of original meaning. Absent a showing of error by the framers about the application-yielding facts, I'd assume they were right about the application too. In the bit quoted in the post, Thomas only says the history "suggests" the conclusion.
 

Chris,

Thanks for your comment and the link to your impressive paper on the subject.

I think we basically agree. I did not mean to imply any restrictions to particular contexts or worlds in my definition. I also agree that there are many reasons why conflicts between meaning and its applications can exist, though I think such data points should be statistical outliers.

I haven't studied the particulars of this case very much either, but my questions of Prof. Balkin were primarily meant to probe his general philosophy of "original expected applications" versus "original meaning".

At first glance, it appears that he defines "original expected applications" rather narrowly but then equates it with traditional originalism, and then dubs living constitutionalism to be "original meaning" because it better explains how constitutional interpretation has actually operated in practice.

I'm interested in your take on his philosophy, since I assume I'm missing something.
 

Kevin,
I need to read Balkin's reply more carefully before I comment on his theory in general, but his assessment of the current state of constitutional theory seems the weakest theoretical part of his paper, as Berman points out. So I don't think his equating original expected applications with traditional originalism is right. (I think the application to abortion has some problems too.) In general I think "text and principle" doesn't say enough about the relationship between text and principle. Which is binding when, and why? I think the textually-expressed principle--that is, the sense historically expressed by the constitutional language--is interpretively paramount. To the extent Balkin gives himself more wiggle room than that, he's liable to err. But I need to read the reply carefully before I say more.
 

Thanks, Chris.
 

Having read the concurrence now, I don't think Balkin's criticism is on point. Thomas seems to acknowledge that the passage of time could make a difference to the constitutional outcome. "To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech." I read that as a challenge to those who disagree to explain exactly what it is about the changed situation between then and now that requires a different result--as I would put it, exactly what changes in reference-yielding facts are supposedly at work.
 

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asbestos exposure in the workplace, and created guidelines for engineering controls and respirators, protective clothing, exposure monitoring, hygiene facilities and practices, warning signs, labeling, recordkeeping, and medical exams. By contrast, the British Government's Health and Safety Executive (HSE) states formally that any threshold for
mesothelioma must be at a very low level and it is widely agreed that if any such threshold does exist at all, then it cannot currently be quantified. For practical purposes, therefore, HSE does not assume that any such threshold exists. People who work with
asbestos wear personal protective equipment to lower their risk of exposure. Recent findings have shown that a mineral called erionite has been known to cause genetically pre-dispositioned individuals to have malignant mesothelioma rates much higher than those not pre-dispositioned genetically. A study in Cappadocia, Turkey has shown that 3 villiages in Turkey have death rates of 51% attributed to erionite related
mesotheliomaExposure to
asbestos fibres has been recognised as an occupational health hazard since the early 1900s. Several epidemiological studies have associated exposure to asbestos with the development of lesions such as asbestos bodies in the sputum, pleural plaques, diffuse pleural thickening, asbestosis, carcinoma of the lung and larynx, gastrointestinal tumours, and diffuse mesothelioma of the pleura and peritoneum.
The documented presence of
asbestos fibres in water supplies and food products has fostered concerns about the possible impact of long-term and, as yet, unknown exposure of the general population to these fibres. Although many authorities consider brief or transient exposure to
asbestos fibres as inconsequential and an unlikely risk factor, some epidemiologists claim that there is no risk threshold. Cases of mesothelioma have been found in people whose only exposure was breathing the air through ventilation systems. Other cases had very minimal (3 months or less) direct exposure.
Commercial
asbestos mining at Wittenoom, Western Australia, occurred between 1945 and 1966. A cohort study of miners employed at the mine reported that while no deaths occurred within the first 10 years after crocidolite exposure, 85 deaths attributable to mesothelioma had occurred by 1985. By 1994, 539 reported deaths due to mesothelioma had been reported in Western Australia.
Family members and others living with
asbestos workers have an increased risk of developing
mesothelioma and possibly other asbestos related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to asbestosMany building materials used in both public and domestic premises prior to the banning of
asbestos may contain
asbestos Those performing renovation works or activities may expose themselves to asbestos dust. In the UK use of Chrysotile asbestos was banned at the end of 1999. Brown and blue
asbestos was banned in the UK around 1985. Buildings built or renovated prior to these dates may contain asbestos materials.
For patients with localized disease, and who can tolerate a radical surgery, radiation is often given post-operatively as a consolidative treatment. The entire hemi-thorax is treated with radiation therapy, often given simultaneously with chemotherapy. Delivering radiation and chemotherapy after a radical surgery has led to extended life expectancy in selected patient populations with some patients surviving more than 5 years. As part of a curative approach to
mesothelioma radiotherapy is also commonly applied to the sites of chest drain insertion, in order to prevent growth of the tumor along the track in the chest wall.
Although
mesothelioma is generally resistant to curative treatment with radiotherapy alone, palliative treatment regimens are sometimes used to relieve symptoms arising from tumor growth, such as obstruction of a major blood vessel.
Radiation Therapy when given alone with curative intent has never been shown to improve survival from
mesothelioma The necessary radiation dose to treat mesothelioma that has not been surgically removed would be very toxic.
Chemotherapy is the only treatment for
mesothelioma that has been proven to improve survival in randomised and controlled trials. The landmark study published in 2003 by Vogelzang and colleagues compared cisplatin chemotherapy alone with a combination of cisplatin and pemetrexed (brand name Alimta) chemotherapy) in patients who had not received chemotherapy for malignant pleural mesothelioma previously and were not candidates for more aggressive "curative" surgery. This trial was the first to report a survival advantage from chemotherapy in malignant pleural
mesothelioma showing a statistically significant improvement in median survival from 10 months in the patients treated with cisplatin alone to 13.3 months in the combination pemetrexed group in patients who received supplementation with folate and vitamin B12. Vitamin supplementation was given to most patients in the trial and pemetrexed related side effects were significantly less in patients receiving pemetrexed when they also received daily oral folate 500mcg and intramuscular vitamin B12 1000mcg every 9 weeks compared with patients receiving pemetrexed without vitamin supplementation. The objective response rate increased from 20% in the cisplatin group to 46% in the combination pemetrexed group. Some side effects such as nausea and vomiting, stomatitis, and diarrhoea were more common in the combination pemetrexed group but only affected a minority of patients and overall the combination of pemetrexed and cisplatin was well tolerated when patients received vitamin supplementation; both quality of life and lung function tests improved in the combination pemetrexed group. In February 2004, the United States Food and Drug Administration approved pemetrexed for treatment of malignant pleural mesothelioma. However, there are still unanswered questions about the optimal use of chemotherapy, including when to start treatment, and the optimal number of cycles to give.
Cisplatin in combination with raltitrexed has shown an improvement in survival similar to that reported for pemetrexed in combination with cisplatin, but raltitrexed is no longer commercially available for this indication. For patients unable to tolerate pemetrexed, cisplatin in combination with gemcitabine or vinorelbine is an alternative, although a survival benefit has not been shown for these drugs. For patients in whom cisplatin cannot be used, carboplatin can be substituted but non-randomised data have shown lower response rates and high rates of haematological toxicity for carboplatin-based combinations, albeit with similar survival figures to patients receiving cisplatin.
In January 2009, the United States FDA approved using conventional therapies such as surgery in combination with radiation and or chemotherapy on stage I or II Mesothelioma after research conducted by a nationwide study by Duke University concluded an almost 50 point increase in remission rates.
Treatment regimens involving immunotherapy have yielded variable results. For example, intrapleural inoculation of Bacillus Calmette-Guérin (BCG) in an attempt to boost the immune response, was found to be of no benefit to the patient (while it may benefit patients with bladder cancer.
mesothelioma cells proved susceptible to in vitro lysis by LAK cells following activation by interleukin-2 (IL-2), but patients undergoing this particular therapy experienced major side effects. Indeed, this trial was suspended in view of the unacceptably high levels of IL-2 toxicity and the severity of side effects such as fever and cachexia. Nonetheless, other trials involving interferon alpha have proved more encouraging with 20% of patients experiencing a greater than 50% reduction in tumor mass combined with minimal side effects.
A procedure known as heated intraoperative intraperitoneal chemotherapy was developed by at the Washington Cancer Institute. The surgeon removes as much of the tumor as possible followed by the direct administration of a chemotherapy agent, heated to between 40 and 48°C, in the abdomen. The fluid is perfused for 60 to 120 minutes and then drained.
This technique permits the administration of high concentrations of selected drugs into the abdominal and pelvic surfaces. Heating the chemotherapy treatment increases the penetration of the drugs into tissues. Also, heating itself damages the malignant cells more than the normal cells.

What is the mesothelium?
The mesothelium is a membrane that covers and protects most of the internal organs of the body. It is composed of two layers of cells: One layer immediately surrounds the organ; the other forms a sac around it. The mesothelium produces a lubricating fluid that is released between these layers, allowing moving organs (such as the beating heart and the expanding and contracting lungs to glide easily against adjacent structures.
The mesothelium has different names, depending on its location in the body. The peritoneum is the mesothelial tissue that covers most of the organs in the abdominal cavity. The pleura is the membrane that surrounds the lungs and lines the wall of the chest cavity. The pericardium covers and protects the heart. The
mesothelioma tissue surrounding the male internal reproductive organs is called the tunica vaginalis testis. The tunica serosa uteri covers the internal reproductive organs in women.
What is mesothelioma?
mesothelioma (cancer of the mesothelium) is a disease in which cells of the mesothelium become abnormal and divide without control or order. They can invade and damage nearby tissues and organs.
cancer cells can also metastasize (spread) from their original site to other parts of the body. Most cases of mesothelioma begin in the pleura or peritoneum.
How common is mesothelioma?
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age.
What are the risk factors for mesothelioma?
Working with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure at work is reported in about 70 percent to 80 percent of all cases. However, mesothelioma has been reported in some individuals without any known exposure to
Asbestos is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven. asbestos has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
Smoking does not appear to increase the risk of mesothelioma. However, the combination of smoking and asbestos exposure significantly increases a person's risk of developing cancer of the air passageways in the lung.
Who is at increased risk for developing mesothelioma?
asbestos has been mined and used commercially since the late 1800s. Its use greatly increased during World War II. Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with asbestos exposure were not known. However, an increased risk of developing mesothelioma was later found among shipyard workers, people who work in asbestos. Today, the U.S. Occupational Safety and Health Administration (OSHA) sets limits for acceptable levels of asbestos exposure in the workplace. People who work with asbestos wear personal protective equipment to lower their risk of exposure.
The risk o f asbestosrelated disease increases with heavier exposure to asbestos and longer exposure time. However, some individuals with only brief exposures have developed mesothelioma On the other hand, not all workers who are heavily exposed develop asbestos-related diseases.
There is some evidence that family members and others living with asbestos workers have an increased risk of developing mesothelioma, and possibly other asbestos-related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to
asbestos fibers, asbestos workers are usually required to shower and change their clothing before leaving the workplace.
What are the symptoms of mesothelioma?
Symptoms of mesothelioma may not appear until 30 to 50 years after exposure to
asbestos Shortness of breath and pain in the chest due to an accumulation of fluid in the pleura are often symptoms of pleural mesothelioma. Symptoms of peritoneal mesothelioma include weight loss and abdominal pain and swelling due to a buildup of fluid in the abdomen. Other symptoms of peritoneal mesothelioma may include bowel obstruction blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions. It is important to see a doctor about any of these symptoms. Only a doctor can make a diagnosis
How is
mesotheliomadiagnosed?
Diagnosing mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history, including any history of asbestos exposure. A complete physical examination may be performed, including x-rays of the chest or abdomen and lung function tests. A CT (or CAT) scan or an MRI may also be useful. A CT scan is a series of detailed pictures of areas inside the body created by a computer linked to an x-ray machine. In an MRI, a powerful magnet linked to a computer is used to make detailed pictures of areas inside the body. These pictures are viewed on a monitor and can also be printed.
A biopsy is needed to confirm a diagnosis of mesothelioma. In a biopsy, a surgeon or a medical oncologist (a doctor who specializes in diagnosing and treating cancer) removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the
cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples. If the
cancer is in the abdomen, the doctor may perform a peritoneoscopy. To obtain tissue for examination, the doctor makes a small opening in the abdomen and inserts a special instrument called a peritoneoscope into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
If the diagnosis is mesothelioma, the doctor will want to learn the stage (or extent) of the disease. Staging involves more tests in a careful attempt to find out whether the cancer has spread and, if so, to which parts of the body. Knowing the stage of the disease helps the doctor plan treatment.
Mesothelioma is described as localized if the cancer is found only on the membrane surface where it originated. It is classified as advanced if it has spread beyond the original membrane surface to other parts of the body, such as the lymph nodes, lungs, chest wall, or abdominal organs.
How is
mesotheliomatreated?
Treatment for mesothelioma depends on the location of the
cancerthe stage of the disease, and the patient's age and general health. Standard treatment options include surgery, radiation therapy, and chemotherapy. Sometimes, these treatments are combined.
Surgery is a common treatment for
mesotheliomaThe doctor may remove part of the lining of the chest or abdomen and some of the tissue around it. For cancer of the pleura (pleural
mesotheliomaa lung may be removed in an operation called a pneumonectomy. Sometimes part of the diaphragm, the muscle below the lungs that helps with breathing, is also removed.
Stereo Tactic Radiation Therapy also called radiotherapy, involves the use of high-energy rays to kill
cancercells and shrink tumors Radiation therapy affects the
cancercells only in the treated area. The radiation may come from a machine (external radiation) or from putting materials that produce radiation through thin plastic tubes into the area where the
cancercells are found (internal radiation therapy).
Chemotherapy is the use of anticancer drugs to kill cancer cells throughout the body. Most drugs used to treat
mesotheliomaare given by injection into a vein (intravenous, or IV). Doctors are also studying the effectiveness of putting chemotherapy directly into the chest or abdomen (intracavitary chemotherapy).
To relieve symptoms and control pain, the doctor may use a needle or a thin tube to drain fluid that has built up in the chest or abdomen. The procedure for removing fluid from the chest is called thoracentesis. Removal of fluid from the abdomen is called paracentesis. Drugs may be given through a tube in the chest to prevent more fluid from accumulating. Radiation Therapy and surgery may also be helpful in relieving symptoms.
 

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