The Jurisprudence of Constitutional Restoration Is Originalism, but Not All Conceptions of Originalism

Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence Thomas.

Before turning to the core of my Essay, let me first note Rossum’s unique contributions. Rossum brings up to date the literature on Justice Thomas, and his compilation and synthesis of Justice Thomas’ hundreds of opinions enables the reader to systematically understand and evaluate Justice Thomas’ contributions to American jurisprudence. I especially appreciated how Rossum is able to show the ubiquity of Justice Thomas’ originalist dissents and concurrences, and the gravitational force these have exerted on other justices, scholars, and American legal culture.

There are many facets of Understanding Clarence Thomas. This essay will focus on two: its account of Justice Thomas’ originalism, what Rossum calls “original general meaning”; and its consistent theme that originalism is a “jurisprudence of constitutional restoration” because it rejects (nearly) all precedent and privileges the Declaration of Independence.

Rossum distinguishes Justice Thomas’ “original general meaning” conception of originalism from other prominent variants, including original intent, original understanding, and original meaning versions. This identification of original general meaning and its link to Justice Thomas is a relatively novel claim in the literature. Both Rossum’s description of the various versions of originalism and his claim that original general meaning is distinct, warrant fuller explanations.

In my view, Rossum’s description of original meaning originalism is too thin. He states that, “[i]t seeks to ascertain the meaning of the particular constitutional text in question at the time of its adoption.” This is true, but it is also true of all conceptions of originalism because of originalism’s fixation thesis. [1]

In order for the reader to evaluate how Justice Thomas’ conception of originalism is different from original meaning originalism, Rossum needs to provide a fuller description of it. He seems to suggest that, what distinguishes original meaning originalism is the sources from which it draws meaning: “dictionaries of the era and other founding-era documents.” However, since original meaning originalism’s goal is the text’s original public meaning, the universe of available data includes all evidence of contemporary conventional usage. For instance, Professor Randy Barnett reviewed the Pennsylvania Gazette’s use of “commerce” to ascertain its original public meaning. [2]

Rossum describes Justice Thomas’ original general meaning approach as “incorporat[ing] all three” of the other forms of originalism. Original general meaning, he says, seeks “to find agreement among these ‘multiple sources of evidence’ and thereby ascertain the ‘general meaning shown in common by all relevant sources.’” However, original meaning does not seem much different because its goal of ascertaining the text’s conventional meaning, when that text was ratified, also utilizes “multiple sources of evidence” and “all relevant sources.” Indeed, the greater the “data set” from which an original meaning originalist draws, the more powerful the result.

Relatedly, it is unclear to me whether it is possible for original general meaning to “incorporate” the other three, at least without employing closure rules. In particular, when two or more of the three conceptions—original intent, original understanding, and original meaning—would lead to different conclusions, what process would the original general meaning originalist use to decide which is the correct result? Rossum acknowledges that these different forms of originalism can, at least prima facie, come apart, and gives the example of the divergence between the conventional meaning of Article III and the Framers’ and Ratifiers’ intended or understood meaning of sovereign immunity. However, he does not say how Justice Thomas’ original general meaning would navigate this and other conflicts.

I also wonder whether the claim that Justice Thomas adopted an “original general meaning” approach follows from the evidence Rossum provides. Rossum quotes from a speech the Justice gave in 1996 in which, according to the quoted text, he repeatedly utilized the label “original understanding” to describe his interpretative methodology. This may be what Rossum calls “original general meaning,” or it may not be. We do not have enough evidence, I believe, to support Rossum’s move. Also, given the date on which the speech was delivered—after the strong critiques of original intent originalism and before the consolidation of original meaning originalism—it is possible that he was following the then-widespread original understanding view of originalism. This possibility is supported by Rossum’s acknowledgment in his book (page 17, note 41) that “Thomas has not used the term original general meaning; however, consistent with this approach . . . he employs all three terms in his opinions and speeches.”

Now for the theme of “constitutional restoration.” Rossum consistently ties Justice Thomas’ originalism to that term. He writes that, “Thomas has articulated a clear and consistent jurisprudence of constitutional restoration that seeks to restore the original general meaning of the Constitution.” Rossum claims that two distinguishing facets of Justice Thomas’ originalism—its rejection of precedent and its faithfulness to the Declaration of Independence—make it a jurisprudence of “restoration,” one different from other conceptions of originalism. Both of these claims warrant further explanation.

Rossum first argues that Justice Thomas’ originalism is restorationist because “he has been unswayed by the claims of precedent.” Justice Thomas’ remaining outside of precedent’s gravitational pull, in Rossum’s telling, means that he avoids the “distort[ion]” that precedent causes.

However, Rossum does not make two moves necessary to support Justice Thomas’ (and his own) position that precedent is inimical to proper constitutional interpretation. First, he must show that stare decisis is inconsistent with the Constitution’s original (general) meaning. This he does not do, and the evidence for the contrary position is robust. A number of originalists have argued that the original meaning of “judicial Power” includes the doctrine of stare decisis. [3] For example, both opponents and proponents of the proposed Constitution argued for their respective positions based on the premise that federal judges would create and, in turn, be bound by constitutional precedent. I think this is a good thing, and Rossum may disagree; however, a federal judge’s project of constitutional restoration cannot get off the ground without the judge being faithful to the constitutional text that authorizes the federal judge to act in the first instance. Rossum needs more argumentation to support his case.

Second, and relatedly, Rossum’s accolade that Justice Thomas is “unswayed by the claims of precedent,” is overbroad. From an originalist perspective, precedent comes in at least two packages: originalist precedent and nonoriginalist precedent. [4] Originalist precedent correctly identifies and applies the Constitution’s original meaning, while nonoriginalist precedent fails at one or both of those tasks.

It is a reasonable position—though, as I stated above, not the one I believe best supported by the evidence—to argue that an originalist must reject all nonoriginalist precedent. It is less reasonable, however, for an originalist to reject originalist precedent, for reasons I have explained elsewhere.[5] For instance, originalist precedent, in the context of constitutional interpretation, is the chief mechanism by which federal courts identify how the Constitution’s original meaning governs a particular case. It is originalist precedent itself that creates the “constitutional nuance and detail” that Rossum, by contrast, believes is “hid[den]” by precedent. On my account, “getting back to the bare wood” is the judge’s goal only when faced with nonoriginalist precedent, not originalist precedent.

The other facet of Justice Thomas’ jurisprudence that, according to Rossum, facilitates Justice Thomas’ project of constitutional restoration is that Justice Thomas “takes seriously the Declaration of Independence.” His description of Justice Thomas’ view of the relationship between the Declaration and the Constitution is well done, especially in the book where he has more space. I will not belabor a point I have made elsewhere [6]: my reading of the historical evidence is that the Declaration of Independence does not play a unique role in originalist interpretation. Therefore, a jurisprudence of constitutional restoration will treat the Declaration of Independence as a source of the Constitution’s original meaning. More than that, however, will undermine, not facilitate restoration.

One last thought on Rossum’s treatment of the Declaration. It would have helped his audience better understand Justice Thomas’ contributions if he would have identified and, if consistent with space constraints, engaged with scholarship critical of Justice Thomas’ perspective on the Declaration. This lacuna comes through most clearly in the related contexts of the Declaration and affirmative action. Rossum accurately identifies Justice Thomas’ move from “the fundamental principle of equality . . . [manifest in the Declaration] . . . informing the Constitution” to Justice Thomas’ conclusion that affirmative action violates the Constitution.

However, there are bodies of scholarship that have argued that: 1) the Declaration of Independence does not play a unique role in originalist constitutional interpretation [7]; and 2) affirmative action is permitted by the Constitution. [8] My claim here is not that these two different perspectives are correct; instead, my narrower claim is that Rossum’s positive portrayal of Justice Thomas’ contrary positions would have been bolstered by the engagement.

Let me close by emphasizing that my constructive criticism does not detract from Justice Thomas’ signal contributions to American constitutional law, nor from Dr. Rossum’s informative presentation and analysis of those contributions. The book has many other virtues that space constraints do not permit me to acknowledge. Originalism is, as Justice Thomas and Ralph Rossum argue, in part, a project of constitutional restoration. Not all conceptions of originalism, however, support that project.

1 See Lawrence B. Solum, What is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism: Theories of Constitutional Interpretation 23-26, 33-36 (Grant Huscroft and Bradley W. Miller, eds., 2011) (describing originalism’s contribution and fixation theses).

2 Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847 (2003).

3 E.g., John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 N.w. U.L. Rev 803 (2009); Lee J. Strang, An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. Rev. 419 (2006).

4 See Lee J. Strang, An Originalist Theory of Precedent: The Privileged Place of Originalist Precedent, 2010 B.Y.U. L. Rev. 1729, 1740-52 (making this distinction).

5 Id.

6 See Lee J. Strang, The Most Faithful Originalist?: Justice Thomas, Justice Scalia, and the Future of Originalism, 88 U. Det. Mercy L. Rev. 873, 880-81 (2011); Lee J. Strang, Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation?, 111 Penn. St. L. Rev. 413 (2006).

7 E.g., Strang, Originalism, the Declaration of Independence, and the Constitution, supra note, at 413.

8 E.g., Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427 (1997).