Bench Memos

NRO’s home for judicial news and analysis.

Re: Defending Justice Thomas


A Bench Memos reader writes to me to chide Ramesh for excessive magnanimity in his response below to Kendall and Ryan’s critique of Justice Thomas’s originalism.  Ramesh writes that “they score a real point” when they “point out that Thomas does not engage in any sort of originalist analysis” in his concurring opinion in the Parents Involved case on racial school assignments.  Concerned Reader points out that Thomas’s opinion was narrowly targeted as a response to Justice Breyer (Thomas’s third sentence: “I write separately to address several of the contentions in Justice Breyer’s dissent”), an objective that did not require him to offer any originalist analysis of the Fourteenth Amendment in relation to racial discrimination.

This is true, and worth pointing out.  And it may even suffice, for Thomas’s purposes, to argue the point based on the precedents all the justices profess to accept, beginning with Brown v. Board of Education.  But I am led to wonder whether Justice Thomas has ever offered any originalist analysis, with historical evidence from the framing and ratification of the amendment, for his view of this question.  I can’t think of any occasion when he has done so.  The nearest may be this passage from his concurrence in the Adarand Constructors case of 1995:

That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.  As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”). . . . Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.

The proposition that the government must be color-blind because the framers and ratifiers of the Fourteenth Amendment finally brought the Constitution into full concord with the equality principle of the Declaration of Independence is, potentially, a powerful argument.  I don’t know of a place where Justice Thomas develops this argument as a historical matter.  Does anyone else?  Am I forgetting something obvious?



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