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Clarence Thomas Is Not 'Mr. Constitution'

The Wall Street Journal has a remarkable interview with Clarence Thomas, available here. In the interview, Thomas states his fidelity to the Constitution "as it's drafted."

In context, it seems clear that Thomas means to follow the original understanding of the document (though he resists the term "originalism") The real point is that he is a neutral interpreter. "Maybe I am labeled as an originalist or something, but it's not my constitution to play around with. Let's just start with that. We're citizens. It's our country, it's our constitution. I don't feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it."

The chief example, in the WSJ interview, is Justice Harlan's dissenting opinion in Plessy v. Ferguson, in which Harlan said that the Constitution does not permit racial segregation. As the WSJ has it, "Harlan's intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law."

What nonsense! Harlan cannot contend that the text of the document "as it's drafted" mandates his conclusion. From Harlan's opinion, we learn essentially nothing about We the People's original understanding of the relevant constitutional provisions. Worse, the modern consensus, among legal historians, is that as a matter of history, Harlan had it wrong! Under Thomas' preferred method of interpretation, most historians think that Plessy v. Ferguson was correct. The irony is that Thomas singles out, as heroic, a Harlan opinion that failed to apply that method, and that must probably be judged dishonest, erroneous, and even lawless, if that method is the right one.

Of course segregation is unconstitutional, but the reason is complicated rather than simple, and it is not that justices can simply stare at the Constitution and declare it so. (Thomas might respond that segregation is necessarily inconsistent with the textual provision calling for "equal protection," but the provision need not be read that way, and most of those who ratified it did not read it that way.)

The title of the WSJ article is "Mr. Constitution," as if Thomas is really committed to the constitution, while other justices vote their personal preferences. But without seriously consulting history, Thomas has voted to strike down affirmative action programs, to protect property rights from regulation, to invalidate congressional enactments giving citizens the right to sue in federal court, and to treat commercial advertising the same as political speech. In most and probably all of these cases, Thomas voted in a way inconsistent with the Constitution as it was written (and it would be ludicrous to say that his votes were mandated by a neutral reading of the text).

"Mr. Constitution" votes, too much of the time, in a way that fits with the twenty-first century views of the conservative wing of the Republican Party. My own empirical studies, with Thomas Miles of the University of Chicago, show that in administrative law cases, Thomas is the most partisan member of the Court, with Justice Stevens a close second.

The real point here is not to pick on Justice Thomas, who has produced some exceedingly interesting, important, and creative opinions. The point instead involves a major irony of the modern era: Those who insist that they are speaking neutrally for "the Constitution" are often more, not less, likely to read their own political convictions into constitutional law.