When an Alabama Democratic public official recently called Justice Clarence Thomas an “Uncle Tom,” National Review’s Kevin Williamson was moved to write that “when the target of abuse is Justice Thomas, anything goes.” Too true. No other figure of his stature in American life has had to endure so many years of invective, mockery, and white-hot hatred from large numbers of his fellow citizens. Thomas himself recently remarked that “the absolute worst I have ever been treated” was not at the hands of the segregationist whites of his Savannah, Georgia, upbringing, but at the hands of “northern liberal elites”—his pointed omission of a racial description suggesting that it is by no means whites only who have been guilty of this ill treatment.
There are many reasons (but no good ones) for the elite American left’s abuse of Clarence Thomas. “Civil rights leaders” can’t abide the fact that he is staunchly opposed to racial preferences in education, voting rights, and government employment and contracting. Radical feminists still seethe when recalling Senate Democrats’ failure to derail his nomination to the Supreme Court in 1991 over baseless accusations of sexual harassment. And partisans of the “living Constitution” and the metastasizing administrative state recoil from Thomas’s belief in principles of limited government.
In one respect, however, derision and contempt toward an imagined inferior have given way to fear and loathing of another who has proven his mettle. For Thomas has decisively deprived his critics, in nearly a quarter century on the bench now, of one of their fancied grounds of criticism: that he is not up to the job of Supreme Court justice. There is even a strange new respect for Thomas in the legal professoriate in recent years, even among many who vehemently disagree with his jurisprudence.
As Ralph A. Rossum demonstrates in his thorough and instructive new book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, Thomas has blazed his own trail on the Court with a consistent, historically grounded, intellectually rigorous, and legally challenging approach to judging constitutional cases on our nation’s highest court. Those who haven’t been paying attention may still think of him as Justice Antonin Scalia’s sidekick, but he has never been that (as Scalia himself will attest).
Justice Scalia (the subject of Rossum’s previous book) may be described as an exponent of the “original public meaning” approach to constitutional interpretation, which attempts to discern “the meaning of the particular constitutional text in question at the time of its adoption.” Scalia’s brand of originalism—which begins with “textualism” but turns to original public meaning when the text does not supply meaning on its own—eschews the hunt for “original intent” (what the framers intended in Philadelphia, or in New York or Washington for later amendments), or even for “original understanding” (what the ratifiers intended in the state conventions, or for amendments, in the state legislatures).
The text carries its own meaning; to understand it, we must think not about what its authors or ratifiers wanted or expected, but about what they enacted. Therefore, it should be understood according to the way its language was used at the time. For this reason, Scalia famously disregards “legislative history” as well, since he views the records of debates over a statute as more reliably telling us about the legislators’ political maneuvers than about the objective meaning of their enactments.
Justice Thomas, as Rossum shows, is a more eclectic originalist than is Scalia. He is more willing to examine “original intent” in sources like the records of the Constitutional Convention, or “original understanding” in the records of the state ratifying conventions, as well as examining dictionaries and other evidence of the common (or legally specialized) use of the words in the text of the Constitution. He seeks, by use of these various sources, the best possible contemporaneous understanding of the text that he is interpreting. For this reason, Rossum, following the lead of Dean Gregory Maggs of George Washington University Law School, calls Thomas’s eclectic approach “original general meaning” jurisprudence.
But if Thomas is not so univocal an originalist as Scalia, he is far more rigorous—perhaps more than any justice in the history of the Court—in his willingness to follow originalism “all the way down,” as it were, back to the pristine Constitution before judicial precedents had their impact on our understanding. Rossum uses the metaphor of layers of paint, thickly laid on over twenty-odd decades of judicial decisions, noting that Thomas is always willing to consider “scraping away precedent and getting back to bare wood.” On the commerce power and other questions pertaining to federalism, on the freedoms of religion and speech, on the various rights of criminal defendants in the Bill of Rights, even on the question of which clause of the Fourteenth Amendment should be the ground for applying the Bill of Rights to the states, Thomas is often ready to get out his scraper, overturn precedents, and begin anew.
Is Justice Thomas too willing to apply the scraper? Should he give more credence to what his predecessors on the Court have said about the Constitution’s meaning? That cannot be answered without turning to each particular instance where Thomas has called for reconsideration of precedents. But surely where the Court has genuinely erred, and taken the country down dubious highways and byways, it is never a mistake to rectify such errors, particularly in constitutional law, where the Supreme Court’s wrong decisions are often, practically speaking, impossible for anyone else to correct. Or what, after all, is the Constitution for?
Critics of Thomas’s frequent attacks on precedent call him a “judicial activist” on this account, as though it were shockingly political for a justice to exercise the stern self-discipline of submitting to the Constitution’s constraints on his power to shape the law. For this is the plain truth about originalism, weak or strong, univocal or eclectic: alone among jurisprudential approaches, it constrains judicial authority, mindful of the separation of powers and of the divide between legal decision-making and public policy-making.
Constitutional judging has an enormous impact on the shape of public policy. Yet it ought to have this impact only incidentally, by way of decisions about legal rights, wrongs, and remedies. The jurisprudence of the “living Constitution” (including the too-clever-by-half gambit of “living originalism”) could more accurately be called the “murdered Constitution,” as it betrays the very purposes of a constitution. It liberates judges to place their power in the service of contemporary ideology, and to enslave the law to political agendas.
Originalists do not all come to the same conclusions about particular cases or the meaning of every part of the Constitution. Indeed, in reading Rossum’s comprehensive account of Thomas’s opinions, I was struck by how many of them I disagreed with. But all originalists have in common a devotion to the discipline of the law. When they err, as all judges will from time to time, it is much less probable that their errors will spring from an impulse to achieve certain political results in our own day.
Whence comes this devotion to discipline, to constitutional constraint, and its concomitant skepticism about precedent? For Clarence Thomas, it seems to come from the same foundation that undergirds the Constitution itself: the Declaration of Independence.
Alone on the modern Court, Justice Thomas is known to cite the Declaration as a source of legal principle in the decision of cases. For him, the foundation of all our law lies in the self-evident truths of the Declaration, beginning with human equality. His conviction that the Fourteenth Amendment was meant to make good on that truth accounts for his persistent invocation of Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), the proposition that the law of the land must be color-blind.
Here we come to Justice Thomas’s most distinctive contribution to our constitutional law, which history will surely vindicate. Hewing closely to the principles of the Declaration, he insists that the law does not properly recognize “group rights,” but only individual rights. When the government attempts the forced integration of schools, or tries to engineer “diversity” in higher education, or presumes that “voting rights” for racial minorities mean the same thing as “representation by members of one’s race,” Thomas recurs again and again to first principles. Individuals are the proper objects of the law’s solicitude, he insists. When groups are attended to, even with the utmost in earnest care, the result is condescension, and the losers are always individuals—both those deliberately disadvantaged by policies of preference, and those putatively advantaged by them, who are robbed of their individuality, treated as though they all think alike, and balkanized by political power.
An African-American colleague of mine once expressed his distaste for the idea of being a “race man,” totally defined in his scholarship and teaching by racial concerns to the exclusion of all else. Some say of Thomas that he is revealed as a “race man” in his passionate opinions on racial preferences, voting rights, and school desegregation. Rossum directly addresses the critics of Thomas who accuse him of personalizing his jurisprudence and of lacking the impartiality proper to a judge. One wonders what his critics would think if he did not bring the experience of an African-American from the South, now freed from segregation and bearing the battle scars of racial politics, to his opinions that touch on these matters.
The question is, what drives the analysis in Thomas’s judging? Rossum writes, of Thomas’s eloquent denunciations of the damage misguided policies have done to the members of his race:
There is obvious passion in these brushstrokes, but they do not define the painting’s composition and character. They merely add texture and fill in the empty spaces of the sketch Thomas has already carefully laid out based on the principle of equality in the Declaration of Independence.
In other words, Thomas is not a “race man,” but a Declaration man. Like Frederick Douglass, whom he is fond of quoting, Thomas believes that if the principles of the Declaration are faithfully followed, all persons benefit as individuals, whatever their race, by virtue of their dignity being recognized as individuals, created equal and endowed by their Creator with unalienable rights.
Indeed, Rossum’s fine book could have even more explicitly drawn attention to the importance of the Declaration for Thomas’s jurisprudence more generally. His originalism, and his skepticism regarding precedent, may be said to be drawn from a recognition that the Constitution is the work of the “consent of the governed,” who laid its foundations and organized its powers in order to effect their safety and happiness. As John Marshall said in Marbury v. Madison (1803):
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental.
What Marshall knew, Thomas knows: it is the people’s Constitution, not the judges’ plaything. Discerning the text’s true meaning, on the best available evidence, is the most reliable way for judges to effectuate the sovereignty of the people, to do justice to the parties before them, and to constrain the uses of their own power. And the Declaration of Independence, properly understood, is the beginning of all wisdom about the Constitution’s meaning.
Perhaps Clarence Thomas-hating has run its course. One can hope so. But as long as the self-evident truths undergirding the Constitution have their adversaries on the bench, at the bar, and in the academy, this Declaration Man will have well earned his enemies.