Ralph Rossum

Ralph Rossum is the Salvatori Professor of Political Philosophy & American Constitutionalism at Claremont McKenna College. He is the author of Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (University Press of Kansas, 2014).

Is Justice Alito Drifting from His Judicial Minimalism Moorings?

Supreme Court Justice Samuel Alito has been closely associated with an approach to constitutional interpretation commonly referred to as judicial minimalism, in which a justice will decide a case on the narrowest basis possible. As he put it in his majority opinion in NASA v. Nelson (2011), the Court should decide only the narrowest question “before us and leave broader issues for another day.” However, his concurrence in the judgment recently in Bond v. United States (2014) raises an interesting question: Is he beginning to waver from his commitment of judicial minimalism?

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Thomas’s Full Throated Originalism: Ralph Rossum Responds

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.

Antonin Scalia, the Court’s other originalist, is also willing to reject Supreme Court precedents that depart from the constitutional text or the traditional understanding of that text, but, as he once confessed to being a “fainthearted originalist,” he has also confessed to being fainthearted when it comes to overruling precedent. As he told Ken Foskett in an interview as he was researching his book on Thomas: “Thomas frequently writes concurrences and dissents that stake out legal ground far beyond what any of his colleagues will embrace. Indeed, he is the most willing of all of his colleagues to overrule precedent, what is known in legal jargon as stare decisis, or ‘let the decision stand.’ He does not believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right. I wouldn’t do that.”[1]

When Thomas believes that the Court has gotten it wrong, he will go after the most venerable of precedents. In his 1998 concurring opinion in Eastern Enterprises v. Apfel,[2] Thomas indicated his willingness to overturn a 200 year-old precedent, the Court’s 1798 decision in Calder v. Bull[3] that held that the Ex Post Facto Clause of Article I, § 9 applied only to criminal and not civil matters. Thomas indicated that he was writing “separately to emphasize that the Ex Post Facto Clause of the Constitution even more clearly reflects the principle that ‘retrospective laws are, indeed, generally unjust.’” Since Calder v. Bull, however, the Court has considered the Ex Post Facto Clause to apply only in the criminal context. But, he averred, “I have never been convinced of the soundness of this limitation, which in Calder was principally justified because a contrary interpretation would render the Takings Clause unnecessary. In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause.”[4]

Whittington and White are favorably disposed toward Thomas’s willingness to reject precedent; Strang, however, is correct to point out that Thomas does not reject precedent simply but only misguided precedent. Strang rightly distinguishes “originalist precedent” from “nonoriginalist precedent.” He suggests that, when I wrote that Thomas wants to scrap away past precedent because he wants to reveal the Constitution’s nuance and detail by exposing its bare wood, I meant only “nonoriginalist precedent, not originalist precedent.” So far, so good. Thomas would have no interest in rejecting precedent that is consistent with the original general meaning of the Constitution, and so that is a helpful clarification. However, Strang goes further and argues that it is, in fact, “originalist precedent itself that creates the ‘constitutional nuance and detail.’”

With that, I beg to differ. The Constitution’s nuance and detail were not created by judges interpreting the Constitution but rather by the delegates of the Philadelphia Convention who first crafted it and the delegates of the state ratifying conventions who brought in into existence, both using words and phrases that had a contemporary customary meaning. If, as I have argued, “nonoriginalist precedent” is the equivalent of thick paint that obscures the Constitution’s original design, then “originalist precedent” is more akin to fine wax that preserves the original finish while revealing the glory of the Constitution’s craftsmanship.

Thomas’s willingness to reject misguided precedent is paying dividends. Whittington compares Thomas to William Rehnquist, who when Associate Justice, was “frequently the lone dissenter, . . . laying down markers for the future.” Eventually, he notes, Rehnquist’s effort “bore fruit” and allowed him to bring “the Court to him.” Similarly, Strang invokes “the gravitational force” that Thomas’s originalist dissents and concurrences “have exerted on other justices, scholars, and American legal culture.” Since the publication of these commentaries, there is even more evidence of Thomas’s influence than I provided in the essay or book.

The Supreme Court has recently decided McCutcheon v. FEC,[5] in which Chief Justice John Roberts, announcing the Judgment of the Court, eliminated the limit on the total dollar amount an individual may give to political candidates and committees. Thomas wrote a concurrence in the judgment, arguing that individual contribution caps should be scrapped altogether and that Buckley v. Valeo,[6] which held that these caps do not violate the First Amendment, should be overruled. “This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment. Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design.”[7] But, even though Thomas only concurred in the judgment, The Hill began its article on McCutcheon by proclaiming that “Justice Clarence Thomas’s influence was on full display in the Supreme Court’s landmark decision to strike down a crucial campaign finance restriction.” It even entitled its article, “Is it Clarence Thomas’s Court?”[8]

In a lengthy series of concurrences and dissents in such cases as the two Colorado Republican Federal Campaign Committee v. FEC cases,[9] Nixon v. Shrink Missouri,[10] FEC v. Beaumont,[11] and Randall v. Sorrell,[12] Thomas argued that “contributions to political campaigns, no less than direct expenditures, ‘generate essential political speech’ by fostering discussion of public issues and candidate qualifications.”[13] In these opinions, Thomas tilled the soil and planted the seeds that Anthony Kennedy in Citizens United v. FEC[14] and Roberts in McCutcheon were able to harvest.

White and Strang both address Thomas’s belief that the principles of the Declaration of Independence underlie and infuse the Constitution. White writes that Thomas’s “most significant contribution to constitutional law” is his conviction that “the fundamental principles of natural law set forth in the Declaration of Independence breathe life into the Constitution’s structures and procedures, and find protection in the Bill of Rights.” White also argues that because Scalia regards for the Declaration of Independence as merely “aspirational,” constitutional interpretation is for him simply “lawyers’ work,” i.e., ascertaining the meaning of texts; by contrast, because Thomas regards the Declaration as foundational, constitutional interpretation is for him based on “bedrock political principles (in the nonpartisan sense.),” and so, for example, White points out that in Grutter v. Bollinger,[15] Thomas focuses on the rights of individuals. I am grateful for White for that insight.

Strang compliments me, saying my “description of Justice Thomas’s view of the relationship between the Declaration of Independence is well done, especially in the book where he has more space.” But, he suggests as well that it would have been helpful if I had “engaged with scholarship critical of Justice Thomas’s perspective on the Declaration,” especially those “bodies of scholarship that have argued that . . . the Declaration of Independence does not play a unique role in originalist constitutional interpretation.” To that, I have two responses. First, as I said in the preface: “In this book, I attempt to understand Thomas as he understands himself. The focus is on Thomas – on what he himself has written, not on what others have written about him.” And second, the “unique role” of the Declaration in Thomas’s jurisprudence seems confirmed by the fact that it is the very first document found in Volume I of the United States Statutes at large – appearing as it does before both the Articles of Confederation and the U.S. Constitution. I think it defensible to argue that the founding generation took the Declaration as seriously as Thomas does.

I conclude by addressing a final challenge from Strang: I mentioned in the book and my essay that the three approaches to originalism – original intent, original understanding, and original public meaning – do not always lead to the same result, and I gave as an example the question of state sovereign immunity. Strang wonders how Thomas – employing what I have called his “original general meaning approach,” one that incorporates all three approaches – “navigate[s] this and other conflicts.” He wants to know what “closure rule” Thomas applies. It is an excellent question.

For Thomas, the rule is a preponderance of the evidence. Regarding the question of state sovereignty immunity, Thomas found, as did a majority of the Court in a long chain of state sovereign immunity cases culminating in his majority opinion in Federal Maritime Commission v. South Carolina State Ports Authority,[16] that the original public meaning of the Eleventh Amendment (namely, that state sovereign immunity was secured only in cases involving state-citizen diversity jurisdiction but not in cases involving federal-question (also known as “subject matter” or “arising under”) jurisdiction, was outweighed by the original intent of the Congress that proposed the amendment and the original understanding of the state legislatures that ratified it. I criticized these cases in Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy[17] and in my book on Thomas, in which I pointed out that the debates in Congress over what became the Eleventh Amendment show that it rejected a proposal by Representative Theodore Sedgwick of Massachusetts that would have provided state sovereign immunity in all cases. Since both the original public meaning of the Eleventh Amendment and the original intent of the Congress that approved it weigh against unlimited state sovereign immunity, I was obliged to conclude in my book that “If South Carolina State Ports Authority (and its holding that the Constitution prohibits the federal government from passing legislation making various arms of the state subject to the administrative proceeding of federal regulatory agencies) was the first Thomas opinion that someone read, that individual would doubtless be astonished to learn that he regards himself as a textualist and as committed to a jurisprudence of original general meaning.” As Strang correctly notes, my book is a “sympathetic – though not a hagiographic – account of Justice Thomas’s work.”
Notes

 

[1] Ken Foskett, Judging Thomas: The Life and Times of Clarence Thomas (New York: William Morrow, 2004), pp. 281-82.

[2] 524 U.S. 498 (1998).

[3] 3 U.S. 386 (1798).

[4] 524 U.S. at 538-39.

[5] 134 S. Ct. 1434 (2014).

[6] 424 U.S. 1 (1976)

[7] 134 S. Ct. at 1464.

[8] http://thehill.com/regulation/other/202633-is-it-clarence-thomass-court

[9] 518 U.S. 604 (1996) and 533 U.S. 431 (2001).

[10] 528 U.S. 377 (2000).

[11] 539 U.S. 146 (2003).

[12] 548 U.S. 230 (2006).

[13] Shrink Missouri, 528 U.S. at 412.

[14] 558 U.S. 310 (2010).

[15] 539 U.S. 306 (2003).

[16] 535 U.S. 743 (2002).

[17] Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD: Lexington Books, 2001).

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Sowing the Seeds of an Originalist Future

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…

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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…

Read More

“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics

Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…

Read More

Thomas’s Full-Throated Originalism: Ralph Rossum Responds

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.

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Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

U.S. Supreme Court Justice Clarence Thomas

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.

Responses

Sowing the Seeds of an Originalist Future

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…

Read More

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…

Read More

“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics

Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…

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Thomas’s Full Throated Originalism: Ralph Rossum Responds

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Toobin’s Disgrace

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Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book.

McGinnis and Rappaport defend what they call “original methods originalism,” because it connects directly to the concept of a good constitution and because its advances the welfare of present day citizens. It does so, they argue, by generating constitutional interpretations that have better consequences than non-originalist theories. We typically think that non-originalists such as Stephen Breyer make consequentialist arguments,[2] but McGinnis and Rappaport argue that the faithful interpretation of the Constitution according to its original meaning will produce better consequences than Breyer’s individual calculus of what is best for society (or the calculus of a majority of the Court, for that matter); it does so, because it is based on upholding our good Constitution and its amendments that supermajorities have enacted.

This essay and the book it describes develop a normative defense of originalism that is not tied to any political philosophy. Their arguments are interesting, powerful, intelligent, and, dare I say, original. They will contribute greatly to the ongoing debate over originalism. They will persuade many, because they argue syllogistically, and as Antonin Scalia and Bryan A. Garner argue in Making Your Case: The Art of Persuading Judges, “the most rigorous form of logic, and hence the most persuasive, is the syllogism.”[3] Their central argument can be expressed as follows. Major premise: Appropriate supermajority rules are the most sound method of producing desirable constitutional provisions establishing a structure of government that preserves democratic decision-making and protects individual rights (i.e., they are the most sound method of producing a good constitution). Minor premise: The Constitution and its amendments have “in the main” been drafted and ratified under appropriate supermajority rules. Conclusion: The Constitution as amended is desirable. And, because it is desirable, because for it to have been enacted and subsequently amended under its appropriately stringent supermajority rules has required the emergence of a substantial consensus of our diverse society that they are desirable, judges must interpret them based on their original meaning inasmuch as a supermajority of the drafters and ratifiers used that meaning when they decided to enact these desirable provisions.

Scalia and Garner are quick to point out that advocates must establish the truth of both their major and minor premises.[4] McGinnis and Rappaport quite ably defend their major premise that there is no superior method of producing a good constitution.

They certainly make the case for why supermajority rule is superior to majority rule when it comes to creating constitutional provisions. However, they may be somewhat too sanguine in their faith in supermajority rule when they argue that it encourages a nation to make good long-term decisions about constitutional change by creating a veil of ignorance about the future and by improving deliberation. They correctly note that, because constitutional changes adopted under supermajoritarian rules cannot easily be repealed in the future, those who draft and ratify these changes cannot be certain how they will affect them and their children and will therefore be likely to consult the interests of all future citizens, i.e., the public interest, when deciding whether to support them.

Fair enough, but, as we all know, supermajority rules do not invariably improve deliberation. Consider, for example, the failure a century ago of the eastern establishment Republicans to use the supermajority rule to resist the adoption of what they considered the wrong-headed Sixteenth Amendment. Rather than fight on principle and refuse to vote for it, they acquiesced in its adoption, but only after they had slipped in what they believed was a poison pill that would assure its defeat in the state legislatures; too clever by half, they added language allowing for the taxation of incomes “from whatever source derived,” convinced that the states would vote against an amendment that would potentially subject state and municipal bonds to federal taxation. The subsequent election of large Democratic state legislative majorities in 1912, ready and eager to ratify the Sixteenth Amendment because they were convinced that the Democrats who had also just won control of the Congress would exempt those bonds from taxation, showed that the Republicans were indeed operating behind a veil of ignorance about the future, but their actions can hardly be described as improving deliberation about the public interest.

Supermajority rules also do little to lift the veil of ignorance about the past. To ride one of my favorite hobbyhorses, consider the fact that the Seventeenth Amendment, replacing the election of the U.S. Senate by state legislatures with direct popular election of senators, was ratified by the states in less than eleven months. It was ratified quickly and by overwhelming numbers. Two statistics show how overwhelmingly: In fifty-two of the seventy-two state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all thirty-six of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from just two legislative chambers: 77 from the Connecticut House and 75 from the Vermont House.[5]

The original mode of electing the Senate by state legislatures was intended by the framers to ensure the protection of states as states and to prevent Congress from trenching on what James Madison in Federalist No. 39 called their “residuary and inviolable sovereignty.”[6] As Alexander Hamilton expressed it so well during the New York ratifying convention: “When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”[7] He also declared: “Sir, the senators will constantly be attended with a reflection, that their future existence is absolutely in the power of the states. Will not this form a powerful check?”[8] Nonetheless, supermajorities in the Congress and the state legislatures adopted and ratified the Seventeenth Amendment without any serious or systematic consideration of its potential impact on federalism. Almost no one (not even among the opposition) paused to weigh the consequences of the amendment on federalism.

Only three exceptions are apparent in the voluminous record of the efforts to secure direct election of the Senate that extended over a forty-year period. One was Representative Franklin Bartlett, a Democrat from New York, who argued powerfully and eloquently during the 53rd Congress that the interests of the states as states could only be preserved by keeping the senators as representatives of their state governments. He fully appreciated that “the Framers of the Constitution, were they present in this House today, would inevitably regard this resolution as a most direct blow at the doctrine of State’s rights and at the integrity of the State sovereignties; for if you once deprive a State as a collective organism of all share in the General Government, you annihilate its federative importance.”[9]

The other two exceptions were in the Senate: George F. Hoar, a Republican from Massachusetts, and Elihu Root, a Republican from New York. On the Senate floor during the 53rd Congress, Senator Hoar defended indirect election of the Senate, declaring that the “state legislatures are the bodies of men most interested of all others to preserve State jurisdiction . . . . It is well that the members of one branch of the Legislature should look to them for their reelection, and it is a great security for the rights of the States.”[10] And, in the 61st Congress, Senator Root argued against direct election of the Senate on the very same grounds – if the sovereignty of the states was to be preserved, the original mode of electing the Senate had to be preserved.[11]

In his January 27, 1838, speech to the Springfield Young Men’s Lyceum, entitled “The Perpetuation of Our Political Institutions,” Abraham Lincoln worried that the founding principles of the republic were “fading” from view and would “grow more and more dim by the lapse of time.”[12] Lincoln warned of the consequences: Those founding principles, he proclaimed, “were a fortress of strength; but what invading foemen could never do, the silent artillery of time has done; the leveling of its walls.” The ratification of the Seventeenth Amendment suggests that not even McGinnis and Rappaport’s reliance on supermajoritarian rule can raise the “veil of ignorance” of the past and defeat the “silent artillery of time.”

As I said, McGinnis and Rappaport are quite successful, if not entirely so, in defending their major premise. They are also quite successful in defending their minor premise, and that is critically important because, as Scalia and Garner point out, “there is much to be said for the proposition that ‘legal reasoning revolves mainly around the establishment of the minor premise.’”[13] Their minor premise is that the Constitution and its amendments have “in the main” been drafted and ratified under appropriate supermajority rules. They succeed, however, only because of their inclusion of the phrase, “in the main.”

McGinnis and Rappaport adroitly argue that the supermajority rules of the Constitution allow each generation to amend the Constitution to entrench its political principles and that this “generationally fair procedure” allows a consensus of any generation to enact changes, thereby contradicting the critics of originalism who argue that it is wrong for the living to be governed by the dead hand of the past. They also explain why the Constitution’s supermajority rules can be used to parry what they concede is the most serious of all criticisms of originalism, i.e., for the Constitution to be good and for judges to be bound by its original meaning, it must be the product of a consensus of the entire population, but the supermajoritarian rules that produced the consensus that enacted the original Constitution and its initial amendments excluded African Americans and women from participation. However, as they nicely point out, despite this “original supermajoritarian failure,” subsequent generations made “supermajoritarian corrections” in the form of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments.

But, to return to their phrase, “in the main.” McGinnis and Rappaport acknowledge the Supreme Court, guided by non-originalist theories, exercises “substantial authority to generate constitutional norms,” i.e., to amend the Constitution, and it does so by majority vote. This departs from their claim that the Constitution and its amendments are good and desirable because they have been enacted by a consensus of the entire society formed according to supermajoritarian rules, not by a simple majority vote of “elite lawyers” on the Supreme Court. And, they note, when the Supreme Court thereby updates the Constitution, it preempts the amendment process and deprives the public of the benefits of the “rich deliberative process” afforded by the supermajoritarian requirements of Article V.

Earlier in their essay, McGinnis and Rappaport explain why permitting a majority to “entrench” constitutional norms is problematic. It is no less problematic when done by a majority of justices. Happily, however, the Constitution provides a solution, but only if the Congress would act. As Hamilton pointed out in Federalist No. 80: “If some partial inconveniences should appear to be connected with the incorporation of any of [the powers of the judiciary] . . . into the plan,” “it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”[14]Under the powers assigned to it in Article III, § 2, Congress could regulate the appellate jurisdiction of the Supreme Court and require that there be a supermajority of the justices (perhaps 2/3s, perhaps even more) to invalidate a federal or state law. (I very much doubt, however, that McGinnis and Rappaport would find such a supermajority rule to be “appropriate,” given their commitment to supermajoritarian rules that result in a society-wide consensus.)

Congress has been as reluctant to exercise its constitutionally authorized power to regulate the Court’s appellate jurisdiction as it has been to make exceptions to it. It has also been reluctant to unleash an altogether “appropriate” supermajority rule for the public to employ. Article V of the Constitution provides two ways by which amendments can be proposed to the states for ratification. The first way is approval by two-thirds of each house of Congress. The other way, never used, is by a convention called into existence by two-thirds of the state legislatures. Amendments that would infringe on congressional prerogatives (think spending caps or term limits) or that would return greater power to the states inevitably fail for want of a two-thirds vote, as Congress acts to preserve its power. Efforts by state legislatures to call for a convention to rein in what they consider congressional excesses are stymied by Congress’s failure (or, perhaps a better word, refusal) to pass legislation to implement this second way by spelling out, for example, the manner of selecting and apportioning the delegates to such a constitutional convention, the place of holding such a convention, the rules of its proceedings, and the scope of its authority. Its failure to do so places state legislators behind a veil of ignorance where they fear that once a convention is called, there may be no way to confine its deliberations, and that such a convention may consider itself authorized to propose other amendments to the Constitution as well—or even to propose an entirely new Constitution organized on completely different principles.[15] Congress has exploited this fear to prevent the emergence of a possible consensus to trim its wings that might be produced by this other “appropriate” supermajority rule.

Having established that supermajoritarian rules produce a Constitution that is desirable, McGinnis and Rappaport argue that that courts should interpret the Constitution using the same interpretive methods its enactors used. They call this “original methods originalism,” which seems very much like what I describe in my forthcoming book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, [16] as Thomas’ “original general meaning” approach to constitutional interpretation. There are, of course, differences in their originalism: McGinnis and Rappaport find the Constitution desirable because of its “supermajoritarian genesis,” while Thomas does so because the principles of the Declaration of Independence underlie and infuse it. [17] Their goal, however, is not to persuade Thomas that their normative defense of originalism based on the Constitution’s supermajority rule should be his. Rather, their goal and, at the end of the day, their greatest challenge is somehow to reach, intellectually engage, and ultimately persuade to their way of thinking non-originalists who are convinced that, however desirable the Good Constitution might be, their vision of a good and ever evolving society is even better. Their goal is certainly ambitious and may be ultimately unattainable, but they deserve our sincere admiration and thanks for how well they are fighting this noble fight.

 

Notes


[1] John O. McGinnis and Michael B. Rappaport, Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013).

[2] Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Knopf/ Vintage, 2006).

[3] Antonin Scalia and Bryan A Garner, Making Your Case: The Art of Persuading Judges (St. Paul, MN, Thomson/West, 2008), p. 41.

[4] Ibid., at 42.

[5] Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD: Lexington Books, 2001), p. 210.

[6] James Madison, Alexander Hamilton, and John Jay, The Federalist, ed. Jacob E. Cooke (New York: World Publishing Company, 1961), p. 256.

[7]. Jonathan Elliot (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, 5vols. (Philadelphia: J. B. Lippincott, 1845). Vol. II, p. 306.

[8]. Ibid., p. 317-18.

[9]. Congressional Record, 53rd Cong., 2nd Sess., Vol. 26, 7774.

[10]. Senator Hoar’s speech was printed as a Senate Document in 1906: “Speech by Senator George F. Hoar,” April 6-7, 1893, Senate Documents, 59th Cong., 1st Sess., No. 232: 22.

[11]. Congressional Record, 61st Cong., 3rd Sess., 2243.

[12]. Richard N. Current (ed.), The Political Thought of Abraham Lincoln (New York: Bobbs-Merrill, 1967), 20.

[13] Scalia and Garner, p. 42.

[14]. TheFederalist No. 80, 541.

[15] There are substantial arguments to the contrary. See Grover Rees III, “The Amendment Process & Limited Constitutional Conventions,” Benchmark 2 (March-April 1986): 66-108. See also American Bar Association Special Constitutional Convention Study Committee, Amendment of the Constitution: By the Convention Method under Article V (Chicago: American Bar Association, 1974).

[16] Ralph A. Rossum, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (Lawrence: University Press of Kansas, 2014).

[17]Adarand Constructors v. Peña, 515 U.S. 200, 240 (1994).

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