Understand Clarence Thomas’ jurisprudence and you will understand a lot about the original intent of the Constitution.
In Thomas’ view, the Constitution is as current today as it was when it was drafted in 1787. It is the blueprint for our self-governing Republic where the People are sovereign, not subjects to be ruled.
If the Founders had wanted a ‘living, breathing Constitution’, they could simply have copied the British who don’t have a written constitution, Thomas has said. But the Founders chose to have a written Constitution and it was understood at the time that its meaning would not change, except through amendment.
Thus, the Founders’ design was ‘perfictible’, as Thomas has put it. This was illustrated by the Civil War amendments that secured the blessings of liberty for former slaves and their progeny.
Thomas believes the modern Supreme Court and the other branches of government have deformed the Constitution. He has taken it as his mission to remedy the situation. Thus, he views stare decisis - the doctrine that judges should follow precedent - as being applicable to the lower courts. But Supreme Court Justices must be faithful to the Constitution, not prior cases which should be overturned if they have deviated from our founding documents.
This makes Thomas often a minority of one on the Court, but his model is Justice Harlan’s solitary dissent in Plessy v. Ferguson, one of the worst decisions the Supreme Court has ever handed down. The Plessy Court ruled that ‘separate but equal’ satisfied the 14th Amendment’s Equal Protection clause, but Harlan’s dissent eviscerated this view and he eventually prevailed. Like Harlan, Thomas is leaving a road map for future Justices - in Thomas’ case, to return to the Founders’ original design.
To give one example, the Supreme Court struck down Chicago’s ban on owning handguns in the 2010 McDonald case on the grounds it violated the Second Amendment as applied to the states through the judicially-created ‘substantive due process’ doctrine under the 14th Amendment. Thomas agreed the ban should have been struck down but would have done so on the grounds that the Second Amendment is one of the liberties secured to U.S. citizens against the states by the Privileges or Immunities clause of the 14th Amendment. Thomas views ‘substantive due process’ as made up from whole cloth and as having the unfortunate consequence of letting the Supreme Court create new rights willy-nilly out of thin air. The Court has done on more than one occasion, such as the fundamental federal right to abortion created in Roe v. Wade. The Privileges or Immunities of U.S. citizenship, on the other hand, are relatively more circumscribed and much less subject to judicial mischief. Thomas would like to see previous erroneous Supreme Court rulings overturned, substantive due process scrapped, and the Supreme Court getting back to the original text of the Constitution.
Likewise, Thomas views the Supreme Court’s yielding to the New Deal and the consequent expansion of the Commerce Clause and the rise of the administrative state as additional judicial wrong turns that need to be corrected. Those wrong turns have given rise to any number of absurdities like the Montana rancher who dug two ponds on his own land and was imprisoned for supposedly polluting the navigable waterways of the United States.
Previous Constitution Minutes have pointed out instances where we are worse off by straying from the Founders’ design - for example, the ill-advised War Powers Act and the turning of the First Amendment proscription against the establishment of an official religion into a quagmire of hard-to-understand distinctions about what constitutes an endorsement of religion and what does not. All originalists owe a debt of gratitude to Justice Thomas for standing for First Principles even when it means standing alone.
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