The Corner

Re: Thomas & Scalia

I generally concur with Andrew, with a few caveats or clarifications. I generally see both Thomas and Scalia as textualists first, and then proponents of original meaning (as opposed to original intent) second. Thomas is certainly less wedded to precedent than Scalia, and is more willing to apply abstract principles where a clear, easy-to-apply rule of decision is absent. Thus, for example, Thomas is likely to be more open to arguments seeking to revive the protection of economic liberty or non-delegation doctrine than Scalia. For Thomas, this could be required by the text. For Scalia, this is simply an opportunity for judicial mischief. (Think Judge Bork’s dismissal of the Ninth Amendment as an “inkblot.”)

I also think Baude’s statement that “Thomas . . . sees himself as a staunch defender of the classically liberal vision of the country’s founders” is defensible. Thomas is much more willing than Scalia to appeal to the principles of the Declaration of Independence, particularly on quetions of race. As I understand it, Thomas was heavily influenced by Harry Jaffa and others who see the Reconstruction Amendments as the perfection of the Constitutional project insofar as they realized the founding principles that all men are created equal and endowed with natural rights. This is not simply an abstract proposition to Thomas, but a constitutional principle that can be applied in proper cases. For more, see Thomas’ speech to the Claremont Institute’s 1999 Lincoln Day dinner.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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