ORIGINAL:

Reading the Constitution Right (Stephen B. Presser, Spring 2007, City Journal)

Despite Thomas's willingness to go against the grain, critics have often charged that he is subservient to the man the Times calls his "mentor": fellow originalist Scalia. And it's true that Thomas concurs more often with Scalia than with any other justice. In one of his lighter moments, he mused that Scalia must have implanted a chip in his brain to control his jurisprudence. But Thomas is no Scalia clone; in fact, he's even more committed to originalism than is the elder justice. Scalia, for instance, has said that he might temper his originalism to accommodate long-standing Court precedent. Thomas believes that, when given the chance, the Court should right its past errors--even if it means overturning "settled" law.

Fittingly, Thomas has emerged as a muscular proponent of states' rights, again countering decades' worth of constitutional law, which has cut back on state power and signed off on a massive expansion of the federal government. Thomas makes clear that, for him, the "ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole." This "compact" theory of the Constitution has a tricky history. Jefferson and Madison--the father of the Constitution himself--adopted it in the crisis of the late 1790s; so did the Southern states when they withdrew from the Union. It's a controversial idea, to say the least, and it flies in the face not only of much modern legal theory but also of the views of some nineteenth-century jurists, including Supreme Court justice Joseph Story, in his celebrated and influential 1833 Commentaries on the Constitution.

Equally boldly, and again in accordance with his views of the primacy of state power, Thomas argues that modern jurisprudence "fundamentally misunderstands"--"ignores" might be a better way of putting it--the notion of "reserved powers" from the Tenth Amendment, which holds that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Taking the Tenth Amendment seriously would mean imposing a more modest role on the central government.

Thomas's states-rights leanings show up most clearly in his dissent in U.S. Term Limits, Inc. v. Thornton (1995), a case in which the Court ruled unconstitutional Arkansas's imposition of term limits on its congressional representatives. The Constitution, reasoned the Court, already listed certain qualifications for congressional office--a representative must be at least 25 years old, for example, and a senator 30--and no state could add to those restrictions. The Court had read Story's treatise, which not only rejected the compact theory but also asserted that the states' sole "reserved powers" were those that they enjoyed before the framing of the Constitution. Because none of the states at the time had placed term limits on their national representatives, it followed that they didn't have the power to do it now.

Thomas didn't buy it, opining that the majority made a mistake in relying on Story's constrained interpretation of "reserved powers." Story "was not a member of the Founding generation, and his Commentaries on the Constitution were written a half-century after the framing," Thomas noted. "Rather than representing the original understanding of the Constitution, they represent only his own understanding." Story's assertion "conflicts with both the plain language of the Tenth Amendment and the underlying theory of the Constitution." Surveying the historical period shortly after the Constitution's ratification, Thomas also showed that at least some states had imposed restrictions on qualifications for office beyond those that the Constitution specified--implying that the document, as the founding era interpreted it, permitted them. Therefore, Thomas concluded, since there was no explicit constitutional denial of the power of setting congressional term limits, the people of the states should retain it.

As a simple matter of text and original understanding, Thomas may well have been right, and the venerated Story wrong.

Thomas has also taken on the modern Court's misinterpretation of the First Amendment's religion clause, which has barred states and localities from promoting religion in the public square. The clause provides that "Congress . . . shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Since its decision in Everson v. Board of Education of Ewing Township (1947), the Court has interpreted that to mean a nearly impenetrable "wall of separation" should stand between church and state--and has applied the principle not only to the federal government but also to state and local governments. For example, the Warren Court barred state-sanctioned public school prayer or Bible reading. More recently, the Court has forbidden public schools to invite clergymen to give benedictions at graduations, or to allow student-led prayer at football games.

But recent work of legal historians, including my own, has shown that the religion clause's real purpose was likely to protect the state establishments of religion that still existed in 1791 in Connecticut, Massachusetts, and Virginia, and probably also the religious restrictions for voting or for holding public office that 11 states had on the books at the time. Endorsing this view, Thomas--alone on the Court--wrote in his concurrence in Elk Grove Unified School District v. Newdow (2004) that "the text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments." As he bluntly put it, "the Constitution left religion to the States."

Justice Thomas's views on abortion similarly reflect his belief that, according to the Constitution, it's up to the states to decide the most important matters of domestic law. In his dissent in Stenberg v. Carhart (2000), joined by justices Rehnquist and Scalia, Thomas affirmed that Roe v. Wade, which in 1973 declared that the constitutional "right to privacy" included the right for a woman to choose to terminate her pregnancy, was "grievously wrong." "Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother," said Thomas. "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so." It seems that those liberals who feared that a Justice Thomas would vote to reverse Roe v. Wade, and return the issue of abortion to state voters, were correct.

Thomas's most powerful opinions, however, concern race. In his view--which not all originalists share--the Fourteenth Amendment's provision forbidding states from depriving any person of the "equal protection of the laws," together with Fifth Amendment federal due-process protections, means that the Constitution is colorblind, pure and simple.

In Adarand Constructors, Inc. v. Pena (1995), the Supreme Court, narrowing the range of permissible race-conscious policies, found that a federal affirmative-action program that gave preferences to minorities in awarding contracts had to show a "compelling governmental interest"--and be "narrowly tailored" to address it--to pass constitutional muster. Thomas concurred, but made clear that he would have gone much further: "I believe that there is a 'moral [and] constitutional equivalence' . . . between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality." No matter the law's intentions, Thomas maintained, "under our Constitution, the government may not make distinctions on the basis of race."

For Thomas, the core of racial preference programs was a paternalism "at war with the principle of inherent equality that underlies and infuses our Constitution." To support his assertion, he cited the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal." As Scott Gerber observes, Thomas's striking argument seeks to incorporate the notion of equality that inheres in the Declaration into the Constitution itself.

It would seem to go without saying that to the extent a Constitutional interpretation diverges from the Declaration it is illegitimate.

Posted by Orrin Judd at April 28, 2007 12:00 AM