Despite his iconic silence in oral arguments, Clarence Thomas is not the least-known justice to sit on the Supreme Court in recent years. That distinction probably belongs to the famously reclusive David Souter, who shared the bench with Thomas from 1991 to 2009. But if Thomas’ public profile is slightly greater, his judicial philosophy is less understood. In Clarence Thomas and the Lost Constitution, writer and historian Myron Magnet seeks to remedy that.
Perhaps most perceptibly, Magnet confirms what closer observers of the court have long known: Thomas is a different kind of conservative than the other Republican-appointed justices.
Antonin Scalia justly earned the credit for taking originalism — the idea that the words of the Constitution ought to be interpreted according to the original public understanding of those words at the time of its composition — from obscure theory to standard method. But in Thomas, the theory has found near-perfection.
The difference between the two justices can be seen most clearly in Gonzales v. Raich, a 2005 case concerning Congress’ power to regulate narcotics. The traditional justification for federal drug laws has been that the drugs are items of interstate commerce. Often they are, but not always. In Gonzales v. Raich, the defendants were prosecuted for growing and smoking marijuana on their own land. The plants never left the property, let alone the state, but the court ruled 6-3 that under the precedents dating back to Wickard v. Filburn in 1942, the federal drug laws were an appropriate exercise of the power to regulate interstate commerce.
Scalia voted with the majority, concurring separately and only expressing his preference for a slightly more nuanced ruling. Thomas dissented. Two other justices — Sandra Day O’Connor and William Rehnquist — believed that the court was stretching the commerce clause too far. Thomas agreed, but also dissented separately to argue that the court’s view of that clause was so far from the original public understanding of commerce as to be nonsensical.
“Commerce,” Thomas explained, “commonly meant trade or exchange (and shipping for these purposes)” to the people who wrote and ratified the Constitution, and to the public at large in those days. No one would call growing a plant “commerce,” nor would consuming it meet the definition. And in any case, none of this commerce was carried out “among the several States,” as the Constitution demands. It was localized production and consumption, nothing more.
But how to reconcile that interpretation, correct though it may be, with the long line of precedents descending from Wickard v. Filburn? That gets to the heart of what makes Thomas’ judicial style unique. Thomas does not demand that the court should be forced to follow incorrect precedents.
It’s a significant departure from stare decisis, the legal tradition of binding precedents usually esteemed by conservatives. Conservatives, Magnet explains, cherish the Founders’ written Constitution, not the Burkean constitution of Britain, with its steady accretion of precedents and statutes. Our federal law did not develop slowly over centuries, but rather came into being all at once in 1789 when the Constitution became our basic law.
Everything that follows from that Constitution is dependent on those written words. In Thomas’ interpretation, that means what Justice Louis Brandeis said in Erie v. Tompkins: There is no federal common law. All of the opinions issued by the court over the years are just that: opinions. They bind the current court no more than an old statute binds the current Congress. What matters is what the Constitution says.
Instead of stare decisis, Thomas believes the court should be asking quo warranto — “by what authority?” a proposed law should be allowed. If that authority is not found in the Constitution then it cannot stand.
The idea is originalist, undoubtedly, but it also contains the whisper of chaos. Precedents may be right or wrong, but they have the virtue of being certain. That is a kind of conservatism all its own: the predictability and clarity of law. Thomas’ ideas would cast doubt on many state actions that now seem to be on solid legal ground.
The phrase quo warranto is telling, too. It was the name of a prerogative writ used by English kings to cause havoc among their enemies. Kings Charles II and James II used quo warranto writs to question the charters of ancient cities. When the cities could not prove the right to exist before the king’s judges, they were forced to request a new charter from the monarch — one that was inevitably more favorable to the king.
Thomas’ radical originalism promises a cure to the perversion Thomas’ the Constitution through caselaw now calcified in stare decisis. But in unearthing the Lost Constitution, Thomas’ approach also threatens to dig up a lot of trouble. Magnet agrees with his subject that this would nonetheless be an improvement. Time will tell, if Thomas can find enough of his fellow justices to agree.
Kyle Sammin is a lawyer and writer from Pennsylvania, and the co-host of the Conservative Minds podcast. Follow him on Twitter at @KyleSammin.
