Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives Original Sin argues that the jurisprudence of original intent. Marcosson demonstrates the inadequacy of judicial conservatism by Series: Critical America.
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Client Counseling as an Ethical Obligation: Of Square Pegs and Round Holes: Colorizing the Constitution of Originalism: Romer and the Limits of Legitimacy: Liberty and Justice For All? James Blumstein on Fisher v. The Beginning of the End of Affirmative Action? The Supreme Court and Health Care: Christian Legal Society v.
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Civil and Criminal Procedure. Gay Rights and Sexual Orientation. Marcosson Professor of Law. The core problem for Thomas, and for originalism, is that its consistent application would be unacceptable politically. But jurisprudentially, it cannot afford the luxury of inconsistent application. Originalism is supposed to bring certainty and legitimacy to the enterprise of judicial review, by anchoring judges to the framers' understanding of the text of the Constitution. If an originalist wavers when the going gets tough, that virtue becomes illusory.
In short, Justice Thomas cannot claim the mantle of originalist legitimacy when he tells me as I am confident he would the Constitution does not protect my right to marry in Kentucky, while advocating the non-originalist position that it does protect his right to marry in Virginia.
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If Justice Thomas were a genuine originalist, the country could benefit from the fight his nomination would produce, and from a meaningful debate over whether we really want a genuinely originalist Court Presser, Chief Justice, presiding? By all means, let us discuss whether the Court should overrule Loving v. Virginia , leaving the states free to criminalize interracial marriages, and Pennsylvania Coal v. Mahon , leaving them free to regulate the value of property down to nothing without giving just compensation.
Originalism would emerge much less well-regarded from a thorough airing of all its implications. Since Thomas is an originalist-of-convenience, rather than one of principle, his nomination would instead prove simply that there are no true originalists on the Court, including Clarence Thomas.
You raise so many provocative points that I'm not sure that a few days will be enough even to begin to discuss them. In this first reply, apart from thanking you for your gracious offer of the Chief Justiceship, I'll simply address originalism in general and Thomas's originalism in particular. I do think that he's probably the most faithful originalist on the Court today if what we mean by originalism is someone committed to interpreting the constitution according to the understanding of its meaning at the time it was ratified, and further someone who believes that "original understanding" which I prefer to my eponymous chair-donor's "original intent" trumps a line of even Supreme Court precedents contrary to that original understanding.
Thus, if Foskett reports Scalia's comments accurately, Scalia is a less faithful originalist than Thomas. The only other plausible candidate on the Court would be Rehnquist, but I think he'd probably concede that he's more committed to stare decisis than Thomas. Is it true that Thomas is an "on-again, off-again" originalist? Your suggestion that Thomas's personal policy preferences mean more to him than originalism is bottomed on Thomas's declared affinity for interpreting the EPC as a declaration of a color-blind constitution, when the framers of the EPC clearly did not intend to abolish segregated schools, miscegenation statutes, or lots of other Jim Crow paraphernalia.
But all Thomas is doing here is following the first Justice Harlan's reading of the EPC, and he was close enough in time to have captured the "original understanding," and thus the "original intent" of the framers of the EPC is irrelevant. I could also finesse the issue and defend Thomas by making the move my colleague Michael Perry used to make and claim that an originalist interpretation of "equal protection," given that the Amendment was clearly designed to deal with treatment to be accorded by the newly-freed blacks, means that any state-mandated treatment of one race differently from the manner in which another is treated is a violation of the EPC, again getting us to the point of a "color-blind constitution.
Setting aside the troublesome EPC for the moment, you'll remember that there was a clear statutory ground in the Michigan case as well, which statute expressly forbade discriminations based on race for programs at institutions given federal funding, and just as the Court of Appeals decided the case on that basis, so I think Thomas's opinion can be similarly defended.
But much of Thomas's opinion is about policy, and how, in particular, affirmative action hurts the very minorities it is ostensibly designed to help, and you said that "policy arguments are to originalists what sunlight is to vampires.
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For Thomas treating people the same regardless of the color of their skin is such a principle, and I think that one can make a powerful argument from natural law that Thomas gets that one right. I still think he'd make a fine Chief. If you want an honest-to-goodness originalist for Chief, your search is going to have to include people not on the Court today.
Scalia's comment that he and Thomas differ when it comes to stare decisis was quite interesting for a couple of reasons. First, the need to jettison precedent to accomplish the Originalist Restoration makes that project even more costly. Stare decisis doesn't exist just because judges don't want to revisit every issue they've already decided. It exists because it provides certainty and stability in the law, and because consistency of results in courts of law is an important attribute of justice. Those are important virtues that full-throttle originalism cannot provide.
Second, even if the original understanding should trump stare decisis , that doesn't exonerate Justice Thomas from my charge he is a part-time originalist. As I said yesterday, if precedent should fall before the not-so-tender mercies of originalism, then Loving must be among the casualties. Your carefully limited responding claims that color-blindness could be consistent with the EPC's original understanding are revealing.
Appropriately, you never argue the framers believed they were establishing a color-blind constitutional mandate, since the overwhelming evidence is that they believed no such thing. To the contrary, those who favored color-blindness, such as Wendell Phillips, believed the amendment betrayed that principle.
Alabama in which, it is worth noting, Justice Harlan did not dissent. No, Loving could not have emerged from an originalist Court, and neither could Brown. They are the proud legacy of a "living Constitution," a Constitution that stands ready when a nation awakens to the great and truer wisdom of its underlying principles, even if those principles are fundamentally at odds with the "original mis understanding" held by the framers.
But it's not just the EPC. If Justice Thomas really believes in junking precedent that conflicts with the original understanding, he should call for the Court to rethink its Takings Clause jurisprudence the way he has questioned the Court's Commerce Clause precedents. Not the original understanding, certainly. But they do neatly serve a conservative political agenda: A judge for whom doctrine is malleable to reach desired political outcomes is surely not a judge an originalist should want to see as Chief Justice.
If he wants to do what you suggest, and allow stare decisis to govern some areas of jurisprudence, or maybe even permit some areas of the constitution to evolve with changes in society you'll condemn him as an on-again off-again originalist, but if he's a consistent originalist you'll condemn him for wanting to impose an order on modernity that's inappropriate.
Heads he loses, tails he loses. Worse, I'm not sure we couldn't make the same criticism you make of Thomas of any other one of the Justices, or anyone who might be appointed to the bench. As far as I know, no one has a consistent plan completely to replace the constitutional jurisprudence of the last eighty years with some pure Lochnerian strain; that's not really what the debate about originalism vs. Instead, the current debate over "judicial ideology," as Scalia suggested in Lawrence , is about what or who is supposed to dictate the rules the Supreme Court applies.
The originalists believe that it's not the job of courts to make new social policy, especially in areas of race, religion, and abortion, and the "living constitutionalists" have no problem with that. The originalists at least have tradition and the limits it imposes on their side, but the living constitutionalists, at least if we believe Scalia, Thomas, Learned Hand, and others, have unfettered discretion, and nothing to guide them but their own consciences or cultural preferences, or maybe the work of economists, sophisters, and calculators.
If we had a Supreme Court composed of Scalias and Thomases I do suspect the abortion issue would be returned to the states, as would the issue of single-sex military academies, and perhaps even the issue of to what extent the states might choose to allow religion into the public square; but so would the question of same-sex marriage, which is, after all, what most advocates of that institution would favor as well. I suspect such a Court would also insist on a true color-blind constitution, arguing that it is anchored in tradition, if not necessarily "original intent" but remember that sensible originalists believe in "original understanding," not original intent.
Such a court would, of course, have decided Loving and Brown in a manner that you would have approved. Are they so horrible?
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Clearly, Justice Ginsburg is even more vulnerable to an attack on originalist grounds. But she can depart from the original understanding without giving rise to the charge of hypocrisy. Thomas cannot, so it is not unfair to judge him by the rules to which he has professed devotion.
Similarly, I grant your point that I'd say Thomas is a poor choice for Chief if his originalism was more consistent.
Why would even consistent originalism be objectionable? Not solely because I think it leads to results like overruling Loving and Brown. It's because the originalist Constitution would be dangerously illegitimate as a framework for governance. The Court has been practicing non-originalism for as long as it has for a good reason: Am I worried about unfettered judges roaming free in the meadows of their own policy delights?
Well, the counter-majoritarian difficulty is real and should not be ignored. But it's not as if non-originalist judges are completely free to impose their policy preferences. For instance, we know stare decisis has a constraining effect on Justice Scalia's originalist commitment. Would you deny that it similarly limits a non-originalist's quest to find his or her heart's desire in the Constitution?
In the VMI case, Virginia was asking to reserve privileged status, and a unique higher educational opportunity, exclusively for men. Separate-but-equal is bad enough; Virginia's policy did not even rise to that level. Worse still, it was doing so in a realm that reinforced gender stereotypes: Empowering states to do that just because they have done so for a long time would, indeed, be horrible. As would the stance a Thomist Court would take in denying the equal protection argument in favor of same-sex marriage.
Federalism is not a virtue when it confers a license to deny substantive constitutional rights of equality and due process. Second, you mention separation of powers. What of Hamdi v. Rumsfeld , where Thomas and Scalia so dramatically parted company? Scalia's fidelity to the Constitution's rules surrounding habeas corpus was downright heroic.
Thomas, on the other hand, virtually disqualified himself as a potential Chief with his alarming solo dissent. His view that the courts should, merely on the say-so of the Executive Branch, be off limits to American citizens invoking habeas usurped the roles of two branches. The Constitution assigns to the Legislature, not the President, the authority to suspend the Great Writ when "in Cases of Rebellion or Invasion the public Safety may require it. It is never more critical that the Court get it right than when the constitutional balance of powers is at stake.
In Hamdi , Scalia got it right. I'm not sure if I've ever encountered anyone in the academy as thoroughly and audaciously honest about the implications of his thoughts or his assumptions. If I understand you correctly, your position is that the constitution is too difficult to amend, the framers got the amendment process wrong, and so it should be the job of the United States Supreme Court to serve as an ongoing constitutional convention and ratification emporium combined. Curiously, all of them at one time or another correct me if I've got that wrong have paid lip service to originalism, and none of them have gone on record claiming the broad power to amend the Constitution on the grounds that Article V doesn't work any more.
You seem to suggest that Thomas is unfit to be Chief Justice because he's hypocritical about his originalism, but the charge can be made just as forcefully if not more with regard to all the other Justices. If, as our official ideology has it, it's better to pretend to be an originalist, I prefer one like Thomas, who delivers more often than not. But perhaps it would be your position that this truth about the court as constitutional amender must be concealed from the American people, and that's why all the Supremes claim on Sundays to be originalists while administering a living Constitution the rest of the week.
I hadn't pegged you for a Straussian, or a follower of Plato's suggestion that the people shouldn't be disabused of their myths. More to the point, I see no reason to think the amendment process doesn't work or that the framers got it wrong. I will concede that there is abroad in the land, often manifested by the same people who believe the Court should administer a living constitution, a belief that the constitution is sacred at least when it comes to the popular process of Article V and should not be amended lightly, and perhaps not amended ever.
This, I think, is hypocrisy, elitism, a power-grab pick your pejorative of choice of a kind that would qualify as a Platonic form. I like Thomas's jurisprudence better. I do believe that constitutional change is proper and possible through the Article V process, and we've seen it in recent years. To think that we need the Supreme Court to do our amending for us simply because that's what it's been doing is to engage in a post hoc ergo propter hoc fallacy. I'm not afraid of amendments, because I'm not afraid of the American people, and, as Burke was prepared to put his faith in the English people as a whole, so am I in the American people.
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I'm trying to suggest here that the Article V process is all about popular sovereignty, and that when we substitute the Supreme Court for Article V we've lost our country. You have a clear sense of your values, and a clear sense of what Supreme Court decisions you favor e. As I've indicated before, I think Loving and Brown can very possibly be justified on originalist grounds believing that the original understanding of the EPC is amenable to construction as a color-blind constitution.
VMI , Roe , and Lawrence , it seems to me, are judicial usurpations of the policy-making and constitutional amendment process, and unless we're willing to cashier the notion of popular sovereignty you're not, are you? To come back to a TV series for a moment, there was one great line that JR had on Dallas when he said "Power isn't something you're granted, power is something you take. Sorry to rant at such length. We'll leave Hamdi for another day.