Clarence Thomas's Originalism

JB

Justice Clarence Thomas is well known for his claim that we should be faithful to the Constitution's original meaning. This often leads him to results contrary with the rest of his fellow Justices, including Justice Scalia, who also claims to be an originalist, but of the "faint-hearted" variety.

But there is more than one version of originalism. Original meaning originalism asks about the meaning of the words in constitutional text to the average person at the time of adoption. Original expected application asks how people at the time of adoption would have understood the text would be applied. Original understanding is usually some form of expectations based originalism-- it asks how the text's meaning and its likely application would have been generally understood at the time of adoption. Original intention asks what some relevant group of persons at the time of adoption intended the law to be or how it should be applied.

Thomas portrays himself as an original meaning originalist. However, I have argued that many original meaning originalists actually conflate original meaning with original expected application. That is, they say they are focused on original meaning, but in fact they focus on original expected applications to decide what the principles underlying the text are and how they should be applied. I also argue that living constitutionalists often make the same mistake-- they too often assume that to be an originalist means you must accept the original expected application.

The recent case of Morse v. Frederick (the Bong Hits 4 Jesus case) offers an example of this conflation in Thomas's jurisprudence. Thomas often slides back and forth between arguments from original meaning and original application. He does not clearly distinguish why he does so. Here is his concurrence in Morse, explaining why he thinks public school students have no rights under the First Amendment.

The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, "there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); see also Cox v. Louisiana, 379 U.S. 536, 554, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965). In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800's. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common. W. Reese, America's Public Schools: From the Common School to "No Child Left Behind" 11-12 (2005) (hereinafter Reese). If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. n1 They did not.

n1. Although the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment, most state constitutions included free-speech guarantees during the period when public education expanded. E.g., Cal. Const., Art. I, § 9 (1849); Conn. Const., Art. I, § 5 (1818); Ind. Const., Art. I, § 9 (1816).

Note that Thomas does not offer us an argument about the original meaning of the first amendment. Instead he asks how people understood the amendment would be applied to public schools in 1789. Since the First Amendment didn't even apply to the states in 1789, it's somewhat hard to figure that out. So instead Thomas turns to how people expected analogous state provisions (which may or may not have had identical language) would have been applied, including examples from the early to middle 19th century.

Thomas's argument is that the First Amendment was not intended to change the common law idea of in loco parentis, the notion that schools had the right to enforce rules and discipline against students in place of the parents. (The notion that the schools stood in place of the parent, of course, could also be used to justify the use of corporal punishment against an unruly student.)

My view is that all this history is quite interesting but mostly beside the point in deciding a case like Morse. We do not live in a world with the same assumptions about the power of school officials over their students, just as we do not think that the original understanding of libel, profanity, sexuality explicit speech or commercial speech should apply either. Our modern doctrines are consistent with original meaning of "the freedom of speech" but not necessarily with the original expected application. Thomas's reliance on the original understanding has all of the familiar difficulties of expectations based originalism. If we take it seriously throughout the corpus of constitutional doctrine, it leads to results that would be politically embarrassing.

Not surprisingly, Thomas often invokes his concepts of originalism selectively, pulling them out when they buttress results he likes and saying nothing about originalism when it would lead to results he does not like. For example, Thomas does not talk about the original meaning or the original understanding of the First Amendment in many First Amendment cases where he would prefer a more libertarian result, for example, in case involving abortion protesters, commercial speech and campaign finance. Perhaps one could offer either original meaning or original understanding arguments for these cases. (Although original understanding, which he uses in Morse, might be somewhat more difficult). But Thomas does not even bother to try.

For years people have complained that Thomas has not taken seriously the evidence of the Reconstruction era Congress on issues of colorblindness. The Congress that passed the Fourteenth Amendment did not adhere to the principle of colorblindness. They adhered to the principle of civil equality. The language of the Fourteenth Amendment reflects this. It does not mention color or race, but it does talk about the privileges or immunities of citizens of the United States. The reason for this is that in 1866 the Congress wanted something more and less than colorblindness. They did not want to give blacks the vote. And they also passed legislation that gave benefits to "colored" persons. (For more on this history, see here, here and here.)

In Parents Involved, Thomas finally refers to this history obliquely in a footnote in his concurrence. He says

The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. Post, at 28–29. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 28 (citing Slaughter-House Cases, 16 Wall. 36, 71–72 (1873)). What the dissent fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution.

It's a nice try, but it won't work. Congressional legislation during this period was directed not only at recently freed slaves, but also at free blacks whose families may have been free for a generation or more. The Reconstruction Congress responded to widespread societal discrimination against blacks-- something that the plurality in Parents Involved would forbid in the name of the same Fourteenth Amendment that the Reconstruction Congress passed. Moreover, the statutes were inconsistent with the current Court's precedents in other ways-- they were not narrowly tailored to remedy only previous acts of discrimination by Congress or by state actors.

Even so, I'm happy that Thomas is starting to come to terms, even in the smallest of ways, with the history of the Reconstruction Amendments. He has offered his opinions repeatedly about what the Fourteenth Amendment means without giving much evidence that he has studied the Amendment's actual history carefully. In doing so, he is not engaged in originalism. He is engaged in bad originalism.
Posted 10:11 AM by JB [link]