Clarence Thomas, Originalism, and the Declaration of Independence

by Matthew J. Franck

At the Witherspoon Institute’s Public Discourse yesterday, I had an essay, “Declaration Man: How Justice Clarence Thomas Earned His Enemies,” reviewing a fine new book by Ralph A. Rossum of Claremont McKenna College, titled Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration.  Rossum comprehensively reviews Thomas’s opinions since his appointment to the Supreme Court in 1991, and ably describes his eclectic originalism and his willingness to scrape away distorting precedents in order to see the Constitution’s own principles more clearly.  I asked:

Whence comes this devotion to discipline, to constitutional constraint, and its concomitant skepticism about precedent? For Clarence Thomas, it seems to come from the same foundation that undergirds the Constitution itself: the Declaration of Independence.

Alone on the modern Court, Justice Thomas is known to cite the Declaration as a source of legal principle in the decision of cases. For him, the foundation of all our law lies in the self-evident truths of the Declaration, beginning with human equality. His conviction that the Fourteenth Amendment was meant to make good on that truth accounts for his persistent invocation of Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), the proposition that the law of the land must be color-blind.

In a brief review, I could not do justice to either Thomas or Rossum, whose book is amazing for its thoroughness and critical care.  Not simply a Thomas cheerleader, Rossum tells his readers where he thinks Justice Thomas’s originalism may go astray, or where he might not have followed his own methods adequately.  It’s hard to imagine a better account of Thomas’s career so far, and I heartily recommend Rossum’s book.  Ditto his earlier book on Justice Scalia.


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