Patriotism and economic liberty are not mutually exclusive. Commercial republicanism can unite them.
When, on July 1, 1991, President George H. W. Bush nominated Clarence Thomas to serve as Associate Justice of the United States Supreme Court, predicting that he would be “a great Justice,” calling him “the best person for this position,” and denying that Thomas’s race had entered into his nomination, many Americans were skeptical. They doubted Bush’s claims, as they doubted his nominee. Among those doubting Thomas were individuals from the civil rights community, convinced that he would abandon the life-long campaign for racial justice undertaken by Thurgood Marshall, the first black justice, whose seat he was to fill. Other doubters included feminists, convinced that Thomas would vote in favor of overturning Roe v. Wade, and members of the political left, certain that he was a partisan conservative of mediocre abilities whose originalist approach to constitutional interpretation was simply a cloak for his policy preferences. Those doubting Thomas even came from the political Right, especially those worried that his unequivocal commitment to the principles of the Declaration of Independence would make him a judicial activist.
During his confirmation hearing, those doubting Thomas were quick to believe Anita Hill’s unsubstantiated claims that he had sexually harassed her. As a result of their doubts, Thomas was confirmed by a razor-thin margin of fifty-two to forty-eight votes.
Even after his confirmation, his critics continued to doubt him; they doubted his intelligence and independence, dismissing him as Justice Scalia’s “sock puppet,” mindlessly agreeing with and repeating Scalia’s arguments, and labeling him, in racially-charged language, Scalia’s “lawn jockey” and “shoe-shine boy.” They went so far as to doubt his very humanity, with the New York Times branding him “the Court’s Cruelest Justice” during his first year on the bench. Left-wing law professors doubted his legitimacy, attempting to rescind invitations to speak that their law schools had extended to him and, if failing at that, boycotting his visits. One went so far as to argue that any five-to-four Supreme Court decision in which Thomas was in the majority should be regarded as nonbinding.
Thomas is now approaching a quarter of a century of service on the High Bench, during which time he has written over 475 majority, concurring, and dissenting opinions. In Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, I undertake a detailed analysis of these opinions as well as of his speeches and law review articles, and provide, thereby, overwhelming evidence that there never was any reason to doubt Clarence Thomas or what President Bush said about him. In them, Thomas has articulated a clear and consistent jurisprudence of constitutional restoration that seeks to restore the original general meaning of the Constitution.
During his nearly quarter of a century on the Supreme Court, Justice Clarence Thomas has pursued an original general meaning approach to constitutional interpretation; he has been unswayed by the claims of precedent – by the gradual build-up of interpretations that, over time, can distort the original meaning of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. As with too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent – focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means – hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood – to the original general meaning of the Constitution.
The two Supreme Court justices who unabashedly identify themselves as originalists are Antonin Scalia and Clarence Thomas. While their approaches have much in common, Scalia has a narrower view of originalism than Thomas – Thomas fundamentally accepts Scalia’s original public meaning approach to constitutional and statutory texts, but then adds to it his original general meaning approach.
Professor Gregory E. Maggs has usefully identified three approaches to originalism. The first is original intent. This approach seeks to identify what the delegates to the Constitutional Convention in Philadelphia collectively intended to accomplish when they drafted the Constitution in the summer of 1787. Those who pursue an original intent approach do so because they believe that “interpreting a document means to attempt to discern the intent of the author.” Therefore, they focus on the records of the Constitutional Convention and on what the delegates said about the Constitution as it was being drafted. Madison’s Notes figure most prominently for them, but other delegates also took notes and many of the delegates wrote letters and essays during and after the Convention that provide for them insight into the framers’ intentions.
The second approach to originalism is original understanding. It focuses on identifying the collective understanding of what the various provisions of the Constitution meant to the delegates of the state ratifying conventions of 1787 and 1788 that brought the Constitution into existence. Those who pursue an original understanding approach point out that the Constitutional Convention met in secret under a rule that declared that “nothing spoken in the House be printed, or otherwise published, or communicated without leave,” and, as a consequence, the public did not become aware of its records and what was said there until decades after ratification of the Constitution. Therefore, they argue, the best way to discern the original understanding of the Constitution is to look at what the delegates said at the ratifying conventions and at what arguments were made by the various Federalist and Anti-Federalist writers attempting to influence the election of those delegates.
The third approach to originalism is original public meaning, most closely associated with Justice Scalia. It seeks to ascertain the meaning of the particular constitutional text in question at the time of its adoption. It does so by consulting dictionaries of the era and other founding-era documents “to discern the then-customary meaning of the word and phrases in the Constitution.”
Thomas has incorporated all three of these approaches into his own distinctive original general meaning approach. In a 1996 lecture entitled “Judging” delivered at the University of Kansas School of Law, Thomas declared that “I have said in my opinions that when interpreting the Constitution, judges should seek the original understanding of the provision’s text, if that text’s meaning is not readily apparent.” And, he went on to elaborate that for him “original understanding” means what both “the delegates of the Philadelphia and of the state ratifying conventions understood it to mean.”
So, in deciding cases, Thomas turns to founding-era documents not only to identify the original intention of the framers, the original understanding of the ratifiers, or the original public meaning of the Constitution’s words and phrases but then to find agreement among these “multiple sources of evidence” and thereby to ascertain the “general meaning shown in common by all relevant sources.” He does so because, while original intent, original understanding, and original public meaning typically lead to the same result, they do not always do so. (Consider, for example the question of state sovereign immunity where the text of Article III, § 2 suggests the states could be sued in federal court without their consent, where Hamilton in Federalist No. 81 and John Marshall in the Virginia State Ratifying Convention said they could not, where the Supreme Court in Chisholm v. Georgia (1793) said they could, and where finally the Congress and the state legislatures through their adoption and ratification of the Eleventh Amendment said they could not.)
The differences between Scalia’s original public meaning approach and Thomas’s original general meaning approach need briefly to be elaborated.
Since his elevation to the Supreme Court, Scalia has assiduously and consistently argued that the Court is to interpret the text alone and nothing else. As a consequence, he rejects reliance on legislative history or legislative intent and invariably refuses to join any opinion (or part of an opinion) that employs it.
Thomas, pursuing an original general meaning approach, incorporates Scalia’s narrower original public meaning approach, and so he also asks what the text meant to the society that adopted it, but he then widens his originalist focus to consider evidence of the original intent of the framers and the original understanding of the ratifiers and to ask why the text (either constitutional or statutory) was adopted. Concerning the Constitution and the Bill of Rights, Thomas reinforces Scalia’s textualism by asking, when necessary to make his case most persuasively, what were the ends the framers (and members of the First Congress) sought to achieve, what were the evils they sought to avert, and what were the means they employed to achieve those ends and avert those evils when they proposed and ratified those texts. And, to answer these questions, he readily turns to Farrand’s Records, The Federalist, Elliot’s Debates, The Founders’ Constitution, The Complete Anti-Federalist, The Documentary History of the Ratification of the Constitution, and the Annals of Congress and incorporates what he finds in these and other founding-era sources into his opinions.
But, there is, however, an even bigger difference between Scalia’s and Thomas’s originalism: the Declaration of Independence. In A Matter of Interpretation, Scalia derisively dismissed what he called Professor Laurence Tribe’s “aspirational” theory of constitutional interpretation by declaring: “If you want aspirations, you can read the Declaration of Independence, with its pronouncements that ‘all men are created equal’ with ‘unalienable Rights’ that include ‘Life, Liberty, and the Pursuit of Happiness.’” But, he continued, “[t]here is no such philosophizing in our Constitution, which, unlike the Declaration of Independence . . ., is a practical and pragmatic charter of government.”
By contrast, Justice Clarence Thomas takes seriously the Declaration of Independence and its claim that all men are created equal. In his Senate confirmation hearings, he explained why:
My interest started with the notion, with the simple question: How do we end slavery? By what theory do you end slavery? After you end slavery, by what theory do you protect the right of someone who was a former slave or someone like my grandfather, for example, to enjoy the fruits of his or her labor?
Thomas believes that the Declaration’s principles are foundational to the Constitution – they “preced[e] and underl[ie] the Constitution” – and he grounds his opinions explicitly in them. In a 1987 article in the Howard Law Journal, Thomas declared that “the ‘original intention’ of the Constitution [was] to be the fulfillment of the ideals of the Declaration of Independence, as Lincoln, Frederick Douglass, and the Founders understood it.”
For Thomas, the higher law principles of the Declaration not only offer insight into how to interpret the Constitution but also provide the “best defense of limited government, of the separation of powers, and of the judicial restraint that flows from the commitment to limited government.” They also offer “our best defense of judicial review – a judiciary active in defending the Constitution, but judicious in its restraint and moderation. Rather than being a justification of the worst type of judicial activism, higher law is the only alternative to the willfulness of both run-amok majorities and run-amok judges.”
For Thomas, it is “the fundamental principle of equality, one of the higher law principles [manifest in the Declaration and] informing the Constitution,” that requires a “color-blind” Constitution. In Adarand Constructors v. Pena (1995), in which the Court held that that the strict scrutiny standard applies to all government classifications based on race, Thomas declared in his concurring:
As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.
He pronounced “the paternalism that appears to lie at the heart of this [racial preference] program” to be “at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence.”
Thomas employs his original general meaning approach as a means of constraining judicial discretion and encouraging judicial restraint. In his University of Kansas lecture on “Judging,” he declared that “judges should adopt principles of interpretation and methodology that reduce judicial discretion.” He explained why this is so important:
Reducing judicial discretion is one of the keys to fostering impartiality among the judiciary. The greater the amount of judicial discretion, the greater the freedom to write one’s personal preferences into the law. Narrow judicial discretion, and you reduce the temptation for judges to ignore their duty to be impartial.
Thomas continued by observing that “in order to maintain our impartiality, judges must also adopt methodologies and principles that encourage judicial restraint.” That methodology for Thomas is original general meaning. He declared that his original general meaning approach “works in several ways to reduce judicial discretion and to maintain judicial impartiality.”
He mentioned three in particular: To begin with, “it deprives modern judges of the opportunity to write their own preferences into the Constitution by tethering their analysis to the understanding of those who drafted and ratified the text.” Additionally, “it places the authority for creating legal rules in the hands of the people and their representatives rather than in the hands of the nonelected, unaccountable federal judiciary.” Finally, Thomas noted, his original general meaning approach “recognizes the basic principle of a written Constitution. We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.” He contrasted the American Constitution with “the British approach of an unwritten, evolving constitution. Aside from an amendment adopted pursuant to the procedures set forth in Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President.”
Examples of how Thomas’s faithful adherence to his original general meaning approach helps him maintain his impartiality and keeps him from writings his own preferences into the Constitution are numerous. They include his dissent in Gonzales v. Raich (2005) in which he voted to uphold California’s “medical marijuana” law; his opinions in such negative commerce clause cases as Hillside Dairy v. Lyons (2003) and United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (2007) in which he upheld economic protectionist measures by states rather than to eliminate undue burdens on the free market; his anti-business federal preemption opinions in Pharmaceutical Research and Manufacturers of America v. Walsh (2003) and Wyeth v. Levine (2009); his opinion in Federal Communications Commission v. Fox (2009) arguing that full First Amendment protection should be extended to indecent broadcast speech; and his concurrence in the partial-birth abortion case of Gonzales v. Carhart (2007) in which he questioned whether Congress had the power to enact a federal law on this subject.
Examples also come from his opinions on behalf of a wide range of criminal defendants concerning a variety of Bill of Rights guarantees in cases such as Georgia v. McCollum (1992), defending peremptory challenges; Wilson v. Arkansas (1995), proclaiming the “knock and announce” rule to be a constitutional requirement; United States v. Hubbell (2000), holding that the term witness in the Fifth Amendment’s “Self-Incrimination Clause” refers not only to one who is called to testify but also to one who is called to furnish evidence; and Alleyne v. United States (2013), building on his concurrence in Apprendi v. New Jersey (2000) and holding the Sixth Amendment right to trial by jury requires a jury to find beyond a reasonable doubt every element that increases the penalty for a crime not only beyond a prescribed statutory mandatory maximum but also beyond a prescribed statutory mandatory minimum.
As Thomas pursues his original general meaning approach, he rejects past decisions that depart from that meaning. He invites his colleagues to join him by engaging in the hard jurisprudential work of scraping away the excrescence of misguided precedent and restoring the contours of the Constitution as it was generally understood by those who framed and ratified it.
For example, in his concurring opinion in the Ten Commandments case of Van Orden v. Perry (2005), Thomas condemned the “incoherence of the Court decisions” that had rendered “the Establishment Clause impenetrable and incapable of consistent application.” He called for a “return to the views of the Framers,” and argued for the adoption of physical coercion “as the touchstone for our Establishment Clause inquiry.”
Regarding free speech and press, it led him to reject precedents that treated commercial speech as having less value than noncommercial speech; to spearhead the attack on campaign financial regulations through his rejection of Buckley v. Valeo (1976), his insistence that both campaign contributions and expenditures “involve core First Amendment expression,” and his argument that the First Amendment fully protects anonymous speech and, therefore, prohibits financial disclosure requirements; to argue consistently that broadcast, cable, and internet companies should enjoy the same First Amendment protections as the print media; and to deny that minors have free speech rights in public schools or that the video-game industry has a right to have access to minors to sell or rent to them its violent video-games without their parents’ consent.
Thomas’s dissent in Kelo v. City of New London (2004) is worthy of mention in this respect as well. In this Takings Clause case (which reads, in the Fifth Amendment: “nor shall private property be taken for public use without just compensation”), Thomas observed that “[s]omething has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.” He regretted that the Court majority relied not on the constitutional text but “almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result.” The principles the Court should have employed to dispose of this case, he argued, “are not be found in precedent but rather in the Public Use Clause itself.” And, he concluded, “[w]hen faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.”
Many illustrative examples of Thomas’s original general understanding approach to the text of the Constitution itself come from his Commerce Clause opinions. From his first major pronouncement in his concurrence in United States v. Lopez (1995) to most recently in his dissent in NFIB v. Sebelius (2012), he has repeatedly rejected the Court’s interpretation that Congress has power to regulate any activity that has a “substantial effect” on interstate commerce, because it not only renders “superfluous” Congress’s other powers enumerated in Article I, § 8 but also gives “Congress a ‘police power’ over all aspects of American life.”
After a long and bruising confirmation battle, Thomas arrived at the Court as damaged goods. And, given the liberal predilections of the legal professoriate, law review articles about him during his first decade of service were unrelentingly hostile and derogatory. But, during his second decade on the Court and beyond, things have changed dramatically; the impact that his concurring and dissenting opinions have had on his colleagues – and the law – became apparent to the legal community, and thoughtful articles taking seriously his opinions and commending his original general meaning jurisprudence are now much more prevalent than those castigating him. They praise him as the “Next ‘Great Dissenter,’” “The Lone Principled Federalist,” and the emerging “Commercial-Speech Protector.”
Prominent law professors across the ideological spectrum are increasingly acknowledging his intellectual contributions and leadership. Steven G. Calabresi, a conservative professor at Northwestern University School of Law and a co-founder of the Federalist Society, has described Thomas’s opinions as “very scholarly, with lots of historical sources” and views him as “the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
Akhil Amar, a liberal professor at Yale Law School, favorably compares Thomas’s career with that of Justice Hugo Black: “Both were Southerners who came to the Court young and with very little judicial experience. Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”
Not everyone is happy with this outcome, but an increasing number of his critics are honest enough to admit Thomas’s impact. One example is Tom Goldstein, who is the publisher and co-founder of SCOTUS blog. He recently wrote: “I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decision-making should be a contest of ideas rather than power, so that the measure of a justice’s greatness is his contribution to new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest justice.”
Thomas was a young man when he was appointed to the Court – he was 43. He arrived utterly fatigued from the months of personal invective and attacks on his character, but he quickly got his second wind, filing powerful and principled dissents within months of his confirmation. He established his pace early on, and through the years he has steadily and confidently lengthened his stride.