In writing "First Principles," Scott Douglas Gerber has done something that few, if any, members of the media or legal cognoscenti have even contemplated: giving Justice Thomas a "fair shake."
Mr. Gerber should be commended for presenting a balanced portrait of Justice Thomas's jurisprudence. Gerber dispells the myth that Justice Thomas is merely Justice Scalia's second vote.
Mr. Gerber also does a good job of exposing the intellectual dishonesty of Thomas's critics. The picture he paints is clear: the current civil rights movement hates Thomas because he fails to tow the liberal, collectivist line. He actually thinks for himself. How remarkable!
After reading this book there can be no doubt that Thomas is his own man. Of course those of us who have taken the time out to actually READ HIS OPINIONS already knew this to be the case.
The only fault that I can find with this book is Mr. Gerber's mischaracterization of originalism. On page 183 of his book Gerber writes that conservative originalism is a flawed method of constitutional interpretation, musing "Why that document? Why that framer?"
Originalism is not that simple. As noted by Justice Scalia is his recent book, A Matter of Interpretation, "It is curious that most of those who insist that the drafter's intent gives meaning to a statute reject the drafter's intent as the criterion for interpretation of the Constitution. I reject it for both. I will consult the writings of some men who happened to be delegates to the Constitutional Convention--Hamilton's and Madison's writings in The Federalist for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus I give equal weight to Jay's pieces in The Federalist, and to Jefferson's writings, even though neither of them was a Framer. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended." (see page 38)
It is interesting to note that Gerber's definition of "originalism" closely parallels the above-referenced quote by Justice Scalia. In a footnote on page 47, Gerber defines "conservative originalism" as maintaining that "the Constitution should be interpreted as the Framers themselves would have interpreted it."
The documents and Framers consulted by judges, or legal scholars, to interpret the Constitution are ONLY IMPORTANT to the degree that they shed light on how the words used in the text of the Constitution were understood by the men who drafted and ratified it. Originalism is not perfect, and it does not answer all constitutional questions or inquiries. But this method of constitutional interpretation works 95% of the time. The problem is that most judges are NOT looking for the answer to a constitutional question, they are looking for a way to justify their agenda. After writing this book and evaluating the superficial jurisprudence of other Supreme Court Justices (e.g. Stevens, Souter, etc.), I have a feeling that Mr. Gerber understands this reality all to well.
With that small criticism noted, I highly recommend this book. A job well done!
