Balkinization: Free Speech on Campus and Thomasian Originalism

Free Speech on Campus and Thomasian Originalism

Mark Graber

This week I received a mailing asking me to sign a petition supporting Professor Stephen F. Smith’s candidacy for the Board of Trustees at Dartmouth College. Professor Smith, a former clerk for Justice Clarence Thomas, seems particularly concerned that Dartmouth has been violating the free speech and due process rights of conservative students. Not knowing the details, I cannot say whether he is right by my understanding of due process and free speech. I am a bit puzzled, however, by how Dartmouth could be said to be violating the due process and free speech rights of students as Justice Thomas seems to understand these matters.

Although, again, I do not know the details of present affairs, I rather doubt that the Dartmouth administration has done anything inconsistent with the free speech and due process rights of college students as they were understood in 1769, when Dartmouth was founded. Similarly, good reason exists for thinking that Dartmouth is not violating free speech and due process rights as they were understood in 1791, when the Bill of Rights was ratified. This is probably correct, even if we forget that, as a private institution, students have no free speech or due process rights against Dartmouth College. Insulting speech in 1791 was not liberty, but license and, as such, was rarely protected. Of course, the possibility exists that at some later date Dartmouth adopted a textual guarantee of due process and free speech (I don’t know). Still, given that Justice Thomas insists on interpreting the due process clause of the Fourteenth Amendment (ratified in 1868) as meaning what due process meant in 1791 when the due process clause of the Fifth Amendment was ratified (see, for example, his dissent in Kelo, the condemnation case), then those who follow in his footsteps would seem honor bound to interpret any unmodified reference to free speech and due process adopted by Dartmouth College in the nineteenth or twentieth centuries to mean what free speech and due process meant at Dartmouth during the eighteenth century. Matters become even more difficult when one recognizes that the Dartmouth administration may believe that there is a culture war going on and that, following Bush administration practices heartily endorsed by Justice Thomas, they may think that persons on the wrong side of the culture war do not have free speech or due process rights.

One suspects, of course, that Professor Smith means approximately what I mean by free speech and due process, that our differences are probably at the margins (for those interested, there is an old 1994ish Vanderbilt Law Review piece in which I suggest constitutional problems with proposed speech regulations on campus). Both of us, I suspect, believe that the due process rights of Dartmouth College students should reflect our best contemporary notions of fairness and that free speech rights on campus should be consistent with contemporary notions of intellectual exchange. When we speak of free speech and due process, we do not refer to particular practices in 1769 or 1791, but to broader values whose understandings have changed and improved over the years. Neither conservatives nor liberals, this suggests, are Thomasian originalists in everyday discourse. Thomasian originalism, Professor Smith's candidacy for the Board of Trustees seems to indicate, is a doctrine for measuring the rights of people conservatives do not like and has no bearing on the rights of conservative students.

Posted 7:44 PM by Mark Graber [link]

Comments:

okay thomas,

i hope you know how this works. now you get to substantiate your claims by citing what professor graber wrote and supporting them with reasons by appeal to common intuitions of the allegations 'anti-intellectualism', 'anti-conservative animus', and 'racialist innuendo'.

# posted by

gloove : 6:21 AM

Conservatism is a race now?

# posted by

Anne : 6:23 AM

i would like to congratulate thomas managing in a single sentence to prove prof. graber's point in its entirety.

# posted by

phg : 6:52 AM

The post is a crock -- even if it is tongue in cheek.

Graber notes that Smith likely uses "free speech and due process" rights as meaning something beyond its 1791 interpretation.

Graber then juxtaposes Smith's usage with Thomas' perspective of the Constitutional rights to free speech and due process -- implying a contradiction. Well, this is where the intellectual charlatanry occurs.

Smith doesn't mean "free speech and due process rights" as is established law and enforceable in federal court. Otherwise, we would see Smith calling for a lawsuit against Dartmouth and not a candidacy for a trustee position.

Graber's quips notwithstanding, Smith recognizes that Thomas' views of the first amendment and due process in relation to governmental/public bodies have little to do with a private institution's policies.

Smith uses the term as shorthand for basic fairness of some type -- and he thinks the phrase "free speech and due process rights" gets it across to a wide audience (who many be comprised of many non-lawyers).

Graber's closing sentence is especially ridiculous. "Thomasian originalism, Professor Smith's candidacy for the Board of Trustees seems to indicate, is a doctrine for measuring the rights of people conservatives do not like and has no bearing on the rights of conservative students."
- Umm, it has no bearing on the rights of conservative students because it doesn't apply to a private setting. As I explained already, Smith isn't likely using the term "first amendment and due process rights" as enforceable in federal court. So, the attempt at the juxtaposition is just fatally flawed.

I could go on, but I don't want to waste any more of my time on something bereft of honesty -- though it could very well be Graber's purpose, playing fast and loose in an attempt at some rhetorical point.

# posted by

humblelawstudent : 10:44 AM

The post is a crock -- even if it is tongue in cheek.

I think we all understood that it was a snark at Thomas. It's not as if this is the first time those of us on this side have done so. Heck, at least one professor has written a book about Thomas's inconsistencies as an originalist. The more time passes, and the more opinions he writes like Kelo, the more opportunity there'll be.

# posted by

Mark Field : 10:41 PM

Hey, a used copy is available for $44. Also, check the library. That's where I found a copy.

# posted by

Joe : 4:08 AM

$55.00! Will that book ever be in the $1.00 bargain bin?

Wow, I didn't even notice the price. I swear I didn't pay that much for it new. I wonder if Sam is getting his fair share of this...

By the way, if anyone is a baseball fan, check out the second review.

# posted by

Mark Field : 11:22 AM

This blog entry got 168 comments, including this one

I'm impressed you could find that thread. I can never find anything in the archives of that site. If you're really good, you can tell which posts in that thread are mine.

For the record, I paid $35 for Sam's book when it first came out in hardcover. I can't believe it's gone up in price that much.

# posted by

Mark Field : 7:07 PM

Ennui Willie Keeler?

Nope, though not a bad guess. I'll give you two clues: I only posted 3 times, and the first three letters of my posting name there are my initials.

# posted by

Mark Field : 11:17 AM

You Aren't far off the mark about Smith.

A bright guy. Extremely so. but drunk on the NeoCon Koolaid;
Friend to Laura Ingraham, substitute son to Thomas, fringy political activity

As for his legal theories?

Check out his essay, “Separation of Church and State” Stephen F Smith"
It's in the theocon magazine First Things, (December 2002).

Bottom line- he is one of those guys who has decided the separation of church and state is not constitutional. Read it yourself.

As for what he would mean for Dartmouth, check out his essay, "Is Darwinism a religion?" where he praises a creationist manifesto, talks about purging America's science departments of Atheists, and suggests mandatory religion classes for college freshman -- and not just any religion classes, either: none of that vague multicultural or philosophy stuff.

That ought to raise academic standards!

Or --check out Wingnut Law School a/k/a Ave Maria- the Hillsdale of grad school.

Smith wrote the first essay in their law review, praising Ave Maria as being "real" Catholics as opposed to Boston College or Notre Dame, and says he hopes they will be part of the vanguard in overturning these silly ideas about secular democracy.

None of this should be a surpise:

When you look at Thomas's clerks, they are ALL scary:

• John Yoo, (Justice Department’s Office of Legal Counsel, prominent advocate that the President’s wartime powers are unlimited )
• Michael O’Neil, the author of the legal provision that let the Bush Administration recently fire and replace US attorneys without congressional approval
• James Ho, another author of the “Geneva conventions memo” cited in the Dept of Justice’s recent assertions that the US had the right to use coercive techniques ,
• Smith himself
• Laura Ingraham, crazy, vicious right wing radio show host. The female Michael Savage.

Thomas doesn't have the intellectual strength to hire clerks with different opinions. At least Scalia brings in people of differing views (not that his opinions reflect any of them).

Thomas, on the other hand, hires most of his clerks from three federal judges, Sentelle, Lutting, and Silberman, who vett clerks for ideological purity. The guy can't stand working with people who might challenge him. or bring an actual idea to the table.
Thomas has said, "I'm not going to hire clerks who have profound disagreements with me." He went so far as to say that working with moderate or liberal clerks “is like trying to train a pig. It's a waste of your time, and it aggravates the pig. ”

Pig indeed.

This is what you are bringing on campus???

# posted by

Jack Bryar's home page : 9:43 PM