The faux originalism of Justice Clarence Thomas.

The law, lawyers, and the court.
Aug. 1 2007 5:16 PM

Originalist Sins

The faux originalism of Justice Clarence Thomas.

(Continued from Page 1)

Here's our guess: The question is not asked because it does not yield an answer Justice Thomas would like. There is no way to make an argument, at least with a straight face, that the 14th Amendment was originally understood to prohibit voluntary school integration. No way. Indeed, given how flimsy the evidence is for Justice Thomas' other argument—that students have no free-speech rights in school—it's clear that he is not shy about stitching together a historical tale from very slim pieces of material. The fact that he doesn't even try to make the historical case in the voluntary integration decision speaks volumes.

What it says is that Justice Thomas is not particularly principled. To be clear, this is not a criticism of Thomas as a person. We're not saying that he's mean or doesn't like dogs or small children. We're criticizing his work, much in the same way Scalia recently criticized Chief Justice John Roberts for his "faux" judicial restraint. Our criticism is similar: Justice Thomas is not sticking with his professed commitment to originalism, and is certainly not living up to his newfound reputation as the high priest of principled originalism.

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His recent opinions instead suggest that Thomas will use originalism where it provides support for a politically conservative result, even if that support is weak, as it is in the student-speech case. But where history provides no support, he's likely to ignore it altogether. If his cheerleaders believe otherwise, they should try to reconcile his opinions in the two school cases on originalist grounds.

While they are at it, they might also try to explain a third case from the end of this past term: FEC v. Wisconsin Right to Life. This was also a free-speech case, decided the same day as the student-speech case. This case dealt with provisions of the McCain-Feingold Bipartisan Campaign Reform Act, a law that regulates issue ads paid for by corporations and unions. Unlike public schools, corporations did exist when the Constitution was originally ratified, and through the opinions of Chief Justice John Marshall, we have a pretty good idea about how the Framing generation tended to view corporations: They are, in Marshall's words: "an artificial being, invisible, intangible, and existing only in contemplation of the law."

In 1990, the Supreme Court in Austin v. Michigan Chamber of Commerce echoed Marshall's views by concluding that "the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures [by corporations]." Nonetheless, after concluding in Morse that students in public school have no free-speech rights, Thomas joined an opinion by Scalia calling Austin"wrongly decided" and endorsing the proposition that corporations should have precisely the same speech rights as individuals. Again, there was no inquiry into original understanding, no Morse-like probe into what the Framers would have wished.

For someone lauded as the originalist's originalist, this is a pretty weak showing. For someone looking to advance a conservative political agenda, however, these three cases constitute a sort of trifecta: Curtail voluntary integration and student rights while boosting the rights of corporations. Not a bad couple of weeks.

There is a lesson here for liberals. In two of the three most important cases of the past term, Thomas was forced to abandon originalism—his version of it, anyway—in order to reach a politically conservative result. In the other, his originalist reasoning was weak at best. What this suggests is that, contrary to conventional wisdom, originalism may not be co-extensive with the Republican Party platform after all. It also suggests, as we've written elsewhere, that liberals ought to begin to take a closer look at text and history themselves.

Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

Jim Ryan is the William L.. Matheson & Robert M. Morgenthau distinguished professor of law at the University of Virginia School of Law.

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