Ralph Rossum on Understanding Clarence Thomas

In my view, when historians look back on this period of the Supreme Court, Justice Clarence Thomas will be seen as extremely important justice. While Justice Scalia will be seen as the justice who initially developed modern originalism on the Court, Justice Thomas will be seen as the justice who most consistently pursued the doctrine. Although Thomas’s decisions may have fewer adherents on the Supreme Court, he has exerted influence in other ways by making previous positions that were not discussed in government bodies – such as returning to the pre-New Deal Commerce Clause – to be part of the conversation. His differences with Justice Scalia also shows to the world that originalism comes in various stripes.

It is therefore a welcome event that Ralph Rossum is publishing a new book on Justice Thomas’s jurisprudence. Rossum’s other work suggests that this is likely to be an excellent book and is one that I hope to read in the near future. Here is a description of the book:

Though Clarence Thomas has been a Supreme Court Justice for nearly 25 years and has written close to five hundred opinions, legal scholars and pundits have given him short shrift, often, in fact, dismissing him as a narrow partisan, a silent presence on the bench, an enemy of his race, a tool of Antonin Scalia. And yet, as this book makes clear, few justices of the Supreme Court have developed as clear and consistent a constitutional jurisprudence as Thomas. Also little known but apparent in Ralph A. Rossum’s detailed assessment of the justice’s jurisprudence is how profound Thomas’s impact has been in certain areas of constitutional law not only on the bench but also even among some of his erstwhile disparaging critics.

During his years on the Court, Thomas has pursued an original general meaning approach to constitutional interpretation; he has been unswayed by claims of precedent, by the gradual buildup of interpretations that, to his mind, come to distort the original meaning of the constitutional provision in question, leading to muddled decisions and contradictory conclusions. In a close reading of Thomas’s hundreds of wellcrafted, extensively researched, and passionately argued majority, concurring, and dissenting opinions, Rossum explores how the justice applies this original meaning approach to questions of constitutional structure as they relate to federalism; substantive rights found in the First Amendment’s religion and free speech and press clauses, the Second Amendment’s right to keep and bear arms, the Fifth Amendment’s restrictions on the taking of private property, and the Fourteenth Amendment regarding abortion rights; and various criminal procedural provisions found in the Ex Post Facto Clauses and the Bill of Rights.

Thomas grounds his original general meaning approach in the Declaration of Independence and its “self evident” truth that “all men are created equal”; that truth, he insists, “preced[es] and underl[ies] the Constitution.” Understanding Clarence Thomas traces the many consequences that, for Thomas, flow from the centrality of that “self evident” truth, and how these shape his opinions in cases concerning desegregation, racial preference, and voting rights. The most thorough explication ever given of the jurisprudence of this prolific but little understood justice, this work offers a unique opportunity to grasp not just the meaning of Clarence Thomas’s opinions but their significance for the Supreme Court and constitutional interpretation in our day.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. libertarian jerry says

    In the Progressives(socialist) rush to create a collectivist society one of the major barriers to that aim were segments of the American Constitution. With the advent of the 14th,16th and 17th Amendments plus the New Deal,the Great Society,the United Nations Treaty,The Patriot Act plus a plethora of legal mumbo jumbo interpretations of clauses such as the “General Welfare” Clause and the “Commerce Clause” among others, the Progressives have turn on its head the original intents of the Founder Fathers in relation to the original Constitution. What we now have,to our detriment,is not a nation that is a Republic with laws written in concrete. But instead a nation of fluid laws with powerful men,many behind the scenes, who wish to dominate and exploit the productive American people. In essence,what Clarence Thomas has done is to fight to preserve the original intent as much as possible. Often,you can tell by the criticisms against Justice Thomas who exactly does not believe in a limited Republican form of government but,instead wishes to push on the American People a system of centralization of power in the hands of an elite few. In his fight to defend “original intent” Justice Thomas should receive his due praise. But I’m afraid for the lovers of liberty it may be too little too late.

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