Most defenders of originalism agree with Vermeule that originalism needs a justification outside of itself.
Corey Robin’s The Enigma of Clarence Thomas has certainly attracted a lot of attention. To mention a few of the highlights: the New Yorker excerpted it; the New York Times reviewed it twice and also published an op-ed by Robin about it; the Washington Post, the Wall Street Journal, and The Atlantic reviewed it too; Vanity Fair interviewed Robin about it; C-SPAN broadcast the New York Public Library’s book launch for it; and Annette Gordon-Reed, Patricia J. Williams, Dahlia Lithwick, and Jack M. Balkin provided dust-jacket “blurbs” for it.
Unfortunately, Robin’s book is both agenda-driven and wrong. With respect to the former, any book about a public official that the author labels an “enemy” and a “liar” must be read with a skeptical eye, especially when the secondary sources the author tends to cite are either written by other authors who view Justice Thomas as an “enemy” and a “liar” (e.g., Jane Mayer and Jill Abramson, the co-authors of the anti-Thomas screed Strange Justice: The Selling of Clarence Thomas) or mis-characterized (e.g., despite Robin’s assertion that I am a “conservative admirer” of Justice Thomas because of my book First Principles: The Jurisprudence of Clarence Thomas (1999), I am a libertarian scholar who frequently disagrees with him but who tries to treat him fairly… as Justice Thomas himself has publicly acknowledged).
The principal reason why Robin’s book is wrong is because Robin is a Marxist ideologue who has constructed categories of interpretation that no one utilizes, and this leads him to make a mess of Justice Thomas’s constitutional philosophy. (The fact that the “mainstream” media outlets that have lauded Robin’s book fail to note Robin’s Marxist perspective demonstrates how far Left the “mainstream” media has become. But that is a story for another day.) The following paragraph in which Robin finally reveals on page 153 the central tenet of his 221-page text is particularly remarkable:
At the heart of Clarence Thomas’s two Constitutions is the black man. But it is not the black man of Thomas’s political economy, the provider for his family and community. This black man is a figure of authority whose word is law for the women and children under his care. In the story offered by the Black Constitution, as we’ll see, the black man is a protective presence, wielding a gun to guard his family from marauding white supremacists. In the White Constitution story, he’s an absent figure, abandoning his family for the pleasures of drugs, crime, and sex, leaving his children in the care of weak-willed black women who cannot supply the authority children need to grow up into the sturdy, proud folk their ancestors once were. The purpose of Thomas’s Black Constitution is to support the black patriarch where he exists; the purpose of Thomas’s White Constitution is to create that patriarch where he does not exist. In both cases, the project of the Constitution, as Thomas understands it, is the construction of black male authority — at the level not of the state but of society, in the private world of the black family and the public world of the black community.
In the two chapters that follow — “The Black Constitution” and “The White Constitution” — Robin proceeds to demonstrate why Marxist philosophers with political agendas should not be writing books about the jurisprudence of Supreme Court justices. In the chapter about “The Black Constitution,” for example, Robin makes the incredible claim that the Second Amendment is the “centerpiece” of “that Constitution” because Justice Thomas sees the individual’s right to bear arms “as the black man’s main protection against a rampaging white supremacy.” Nothing could be further from the truth. Instead, Thomas, like other proponents of the individual-as-opposed-to-collective-right interpretation of the Second Amendment, views the right to bear arms as a fundamental right in the same sense that freedom of speech and freedom of religion are fundamental rights. In other words, the right to bear arms, like the other rights guaranteed in the Bill of Rights, is entitled to vigorous protection from the courts when restrictions are placed upon it by the political process. As any neutral scholar would easily understand, that was the core of Justice Antonin Scalia’s opinion for the Court in D.C. v. Heller (2008), and Justice Thomas signed on to the entirety of Justice Scalia’s opinion (as did Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito).
Equally remarkable is Robin’s assertion in “The Black Constitution” chapter that Justice Thomas is not really a color-blind constitutionalist. Rather, Robin insists, Thomas has a “dystopian” view of the Constitution: “one marked by considerable race consciousness and group identification among blacks and whites, and enormous suspicion and violent enmity between them.” Clearly, Robin fails to understand Thomas’s constitutional theory about civil rights.
Here is where the Declaration of Independence comes in, a topic that Robin likewise mishandles. Robin writes:
Despite what some of Thomas’s conservative admirers claim, natural law plays almost no role in his jurisprudence. Thomas, as we’ve seen, has sought to strike down economic laws and regulations; he’s also made clear his opposition to Roe v. Wade. But those opinions rest upon claims that have nothing to do with natural law.
But Justice Thomas’s civil rights opinions and votes — the area of the law that should be at the forefront of any discussion of the “Black Constitution” — do, at least when what Thomas means by “natural law” is properly understood. As I have demonstrated in my own work about Thomas, at the heart of Thomas’s philosophical value system is the Lockean liberalism of the Declaration of Independence that places primacy on the individual and the concomitant importance of protecting individual rights. “To secure these rights,” Thomas Jefferson proclaims in the Declaration, “governments are instituted among men.” Even Marxist law professors understand this point. For example, Harvard’s Mark Tushnet remarked in his own work about Thomas:
The law professor Scott Gerber suggests that positions like this reflect a division within Thomas, between what Gerber calls liberal originalism, which tells judges to interpret the Constitution in light of the Declaration of Independence, and conservative or Borkean originalism, which tells them to regard the compromises embedded in the Constitution as expressing the framers’ underlying principles.… There’s surely something to Gerber’s position.
Others, including the student editors of the Harvard Law Review in a Book Note entitled Justice Thomas’s Inconsistent Originalism, likewise understood the difference between Thomas’s liberal originalism in civil rights cases and his conservative originalism in other categories of constitutional law.
Robin says nothing about Justice Thomas’s theories of constitutional interpretation in his discussion of Thomas’s opinions in constitutional law cases. Instead, Robin devotes the bulk of his chapter about “The Black Constitution” to misrepresenting Thomas’s concurring opinion in McDonald v. Chicago (2010). In that case the nation’s highest Court held that the Second Amendment constrains state and local governments as much as it does the federal government in regulating firearms. Thomas wrote separately because he believes that the Privileges or Immunities Clause of the Fourteenth Amendment is preferable to the Due Process Clause for explaining why the Second Amendment applies to the states. Concisely put, Thomas believes that due process is about process, not substance. However, he does not believe, despite Robin’s incredible claim to the contrary, that the Privileges or Immunities Clause is the provision in the Constitution that allows him “to tell a version of American history” in which “racial violence has been the motor of change and African American men have at times taken the wheel.”
Robin’s chapter about Justice Thomas’s “White Constitution” is equally implausible. As is true throughout The Enigma of Clarence Thomas, Robin mis-characterizes Thomas’s opinions in a transparent attempt to prop up Robin’s own outlandish Marxist pop psychology about the Court’s lone black justice. Robin writes: “The task of Thomas’s White Constitution is to re-create the conditions that made for black survival, to undo the culture of rights and replace it with a state of exigency. That exigency is to be found in the harsh rules of the penal state.”
And while Robin discusses more of Justice Thomas’s judicial opinions in the “White Constitution” chapter than he did in the “Black Constitution” chapter, his presentation of those opinions is as fundamentally flawed in the “White Constitution” chapter as it was in the “Black Constitution” chapter. A particularly telling example involves Thomas’s dissenting opinion in Hudson v. McMillian (1992). In that case the Supreme Court held 6-to-3 that the degree of injury suffered by an inmate is one of several important factors in an Eighth Amendment claim of cruel and unusual punishment, but that the absence of “significant injury” alone does not mean the inmate’s rights have not been violated. Predictably, Robin accepted hook, line, and sinker the New York Times’s inflammatory editorial about Thomas’s opinion — that Thomas was “the youngest, cruelest justice” — rather than appreciate, as almost any unbiased commentator would, that Thomas believes that the Eighth Amendment does not apply at all in the prison context. Perhaps even more importantly, Robin fails to mention that Thomas did not say that “punching a prisoner in the face” (to borrow a phrase from the majority opinion) was appropriate behavior or nonredressable behavior. In fact, Thomas stressed that such behavior was “immoral,” “tortious,” “criminal,” and possibly “remedial under other provisions of the Federal Constitution.” Thomas simply said that it was not redressable through the Eighth Amendment because that Amendment, until the Court’s decision in the 1976 case Estelle v. Gamble (“185 years after the Eighth Amendment was adopted,” to quote Thomas’s dissent), only had applied to tortious punishments meted out by statutes or sentencing judges. Thomas did not merely assert this: He chronicled how the Court itself had repeatedly held this prior to Estelle, how leading constitutional law scholars had concluded this, and how the Framers had intended this.
In summary, Corey Robin is a prolific writer with a lively pen. Unfortunately, his Marxist ideology has led him to create a false narrative about Justice Thomas’s jurisprudence.