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First Principles: The Jurisprudence of Clarence Thomas

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While it is true to say that Clarence Thomas is one of the most vilified men to sit on the Supreme Court, it must also besaid that he has also often suffered from having the wrong kind of defenders. With the lonely exception of Senator John Danforth, practically none of Thomases defenders has taken the time to understand his thought or character. Finally, an inteeligent book has been written about Thomas, by someone who comes neither to glorify or condemn Clarence Thomas, but to UNDERSTAND him. Scot Gerber is one of the fastest rising stars in American constitutional thought.In this fine study, he analyzes Thomases opinions, and concludes that Thomas is not simply a tail to Antonin Scalias intellectual kite. Instead, Clarence Thomas ins a thoughtful, highly principled jurist, with a much deeper undrstanding of our Constitution and its foundations than many of his colleagues on the Court,(And the entire Democratic membership of the Senate Judiciary commitee, for that matter.)While Gerber is critical of many of Thomas' opinions,he is never crudely dismissive. Instead, he shows just how scholarly and intelligent this very misunderstood justice is.Why do I call this book 'courageous'.For one reason, and one reason alone. As I have already said, Scott Gerber is a rising star of constitutional theory.He is also a Liberal, in the classical, libertarian sense. However, in defending Thomas, he has risked prevoking the wrath of some very influential people. He has several hair -raising anecdotes in this book about how reputable law reviews have refused to print anything favorable to Clarence Thomas, and it is indeed doubtful that this fine book will meet with the respect it deserves.Even now, it has only been reviewed in 'conservative' magazines, while such organs of "liberalism" as The New Republic ,The New York Review of Books,and The New York Times have greeted it with silence.One can only hope that Americas leading law reviews will not follow in their footsteps,and instead show the same maturity and courage as Scott Gerber.Both he and Justice Thomas deserve respect.

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!

I showed this book to a fellow law student who was reluctant to even hold it, let alone read it. The amazing, but not too shocking, part was the student's incredible prejudice about a Supreme Court justice. I asked if the student had read any of Justice Thomas's court opinions, "No". What did the fellow scholar know of Justice Thomas's personal life? "Only what I saw and heard during the Anita Hill hearings."

Gratefully, the author was much more fair. In law school we are often indoctrinated with a relentlessly biased viewpoint by most of the professors. The best professors help us to think about the law for ourselves. This book serves as a fine example of balance and analysis. The author supports his statements with examples and insight.

All through my Constitutional Law class I kept thinking that the Court was pulling decisions out of the thick Washington D.C. air. As a textualist I was searching for some comprehensive view of the Court's jurisprudence. My in-class quoting from the Constitution and Bill of Rights was often met with a "but that can't be what the framers meant" response. While I found Thomas's opinions striking a chord with me as I read the book, I did not agree with all of them without question.

This book should be repeated in purpose and teechnique for other standing justices as well as those we know from history. It goes along way towards understanding a justice's jurisprudence who will likely be with the Court for many years to come.

A post-Anita Hill assessment of the Justice's work on the Supreme Court. Other books on Thomas just look at his highly controversial confirmation hearings, but this book examines what kind of justice Thomas has dispensed. The author tries to be fair to his subject, something that other commentators on Thomas haven't felt a need to be. Gerber finds Justice Thomas to be a man of principle, grounding his economic opinions in the Constitution and his civil rights decisions in the Declaration of Independence. This book should appeal to fair-minded people who have an interest in the workings of our highest court and in the thinking of, perhaps, our most libertarian justice ever.

This is an exceptional book. What Gerber has done is to avoid the political panderings of both the left and right wing and given us an objective, unbiased consideration of Justice Thomas'opinions. What a pleasure to read a book based in data not political philosophy. Plus the book is very well written. Kudos to Mr Gerber

I applaud Gerber for avoiding yet another partisan attack upon (or defense of) Justice Thomas. Too often scholars, or politicians, respond to justices, and Thomas in particular, with partisan attack divorced from any real consideration of the substance of the justice's view. Gerber looks at Thomas's opinions in cases from three areas: civil rights, civil liberties, and federalism.

Gerber's conclusion is that Thomas is just as result oriented as any other justice, he reads his own preferences into the text he is interpreting in the same manner that "liberal activists" do. Unfortunately, Gerber at times glosses over this fact because of his pet theory of "liberal originalism" that sees all constitutional principles as derivative of the Declaration of Independence (a theory dubious on its own terms). The most obvious gloss comes in affirmative action cases. Thomas has insisted upon a colorblind interpretation of the Equal Protection Clause, but he fails to give any originalist defense of this position. Instead, he uses moral arguments with a single citation to the declaration. Gerber spins from this a position that Thomas believes in his theory of interpretation, at least here since he admits that Thomas abandons this idea in other areas such as religion. But, neither Thomas nor Gerber clearly state what importance the declaration could have on the meaning of the 14th Amendment, enacted nearly a century later. In fact, the history of the 14th Amendment demonstrates a pervasive use of benign racial classifications similar to affirmative action programs, leading many to conclude that, as originally understood, affirmative action programs are constitutional. Gerber swipes aside these criticisms, stating that Thomas's affirmative action opinions rely upon moral arguments and not history. But this ignores the fact that Thomas claims to be an originalist who relies upon the intent and practice of the enactors of a provision. We should hold Thomas up to the standards he claims to live by. Another example, of rather recent development which explains why Gerber's book doesn't include it, is takings. In the recent New London decision, Thomas offered a powerful originalist critique of the broad majority opinion of the public use requirement. He uses intent, original understanding, and contemporary state practice. Yet, he joined in, and continues to support, Scalia's opinion in Lucas admitting that history failed to support regulatory takings, and describing the same history used in New London as irrelevant. This is a glaring inconsistency necessitated by the fact that history fails to support Thomas's belief in regulatory takings so he abandons these inconvenient facts. Thus, we see that originalism fails to constrain Thomas's behavior in the way he claims it does.

Another annoying thing is that Gerber seems to find it necessary to vocalize his opposition to Thomas's opinion, almost as if he is afraid of being labeled a Thomas-defender. I think this is unnecessary and he should have simply presented Thomas's thoughts without his subjective opinion as to the correctness of those positions. All told, I think Gerber's book is a fine one, presenting Thomas's opinions and thoughts themselves. In the end, we see that Thomas is just as likely to join in activist policy-making as any other justice. This should hardly be surprising and we should encourage it because it adds another important voice to constitutional issues, particularly in affirmative action cases where he is the only justices to experience it first hand. We should encourage this diversity of opinion while removing the illegitimate claim that it is the requirement of history rather than Thomas's personal policy preference.

I had one primary motivation for reading an arguably dated book: with the addition of Roberts and Alito to the Court, the Court will certainly transform itself from being the most effective institution, besides our military, in protecting the reserved rights of "We the People" to a court that will most certainly expand government power as the Conservatives on the court gain control. J. Thomas, who has written many a provocative dissent, will now become a prolific writer of opinions that will grant the government sweeping powers as our individual rights are stripped away. I wanted to better understand what to expect out of Thomas as his opinions now become binding law.

Gerber's book is considered the most fair, unbiased, and most accurate analysis of Thomas' jurisprudence though limited to the first five years of his tenure, though it also contains a short afterword that catches up on Thomas through 2000. What is most intriguing about Thomas is that Thomas claims to read and interpret our radically liberal constitution within the context of the even more radically, and revolutionary Declaration of Independence, unlike Scalia who claims to read only the Constitution from a textual perspective. Rather than yielding a solid libertarian view a la' Randy Barnett so well-espoused in Barnett's "The Lost Constitution", Thomas seems to constantly rule opposite of the original meaning or even original intent of those two documents if they deny a conservative political objective. So what gives?

Gerber not only does a great job of providing a rhetoric-free analysis of Thomas's view, he also does a fine job of comparing those views to competing views and fairly crucifying Thomas's media critics who hate the rulings without any understanding of Thomas' arguments. As fair as Gerber is in analyzing Thomas' opinions against his judicial adversaries, Gerber also does a fascinating quantitative analysis to empirically expose whether Thomas is honestly deciding cases or is driven by conservative political objectives - the results of this research contained within the Appendices is alone worth owning this book.

Some of Gerber's findings:

Gerber publishes outtakes from a Thomas 1987 speech to the Heritage Foundation where Thomas claims to support the constitutional principle of the "primacy of the individual, and establishes our inherent equality as a God-given right." Thomas ends this subject in his speech arguing that Conservatives should embrace this concept rather than have this principle continue to be conservatism's "Achilles' heel". Fine rhetoric indeed, Gerber then goes on to show how in ruling after ruling, Thomas rejects his own principles to vote firmly for sweeping government power that deprives the individual of their rights with respect to civil liberties as Thomas ignores the fact that we reserved our rights and tries to limit those rights by trying to prove they are all numerated in the Constitution, and narrowly at that.

Again Gerber quotes Thomas defending the original meaning of the 9th amendment that would "explicitly deny to the national government certain powers over various subjects would imply". And throughout the book Gerber then exposes Thomas as he tries to narrowly interpret the other Bill of Rights amendments to show preference to government power rather than use the Constitution to interpret the powers delegated to the government to, as Jefferson said in the D of I, "secure the blessings of liberty", e.g., Thomas voting with a 5-4 majority approving of government funding of religious activity in Rosenberger v. the U. of VA. (1995); an unprecedented ruling that directly opposses the establishment clause and our equal protection rights.

Not that Thomas is always on the side of non-delegated gov't power. Gerber does a very respectful and insightful analysis of Thomas views on civil rights in regards to affirmative action and Thomas' fierce defense of free speech regarding political speech, like in McIntyre v. Ohio Elections Commission where Thomas did support the original meaning of the Constitution by limiting government power to explicitly stated delegation of powers while broadly interpreting the people's and the press' right to speech.

While the chapter on Thomas' views on Federalism, where Thomas is an active proponent of allowing states non-explicit powers to deny Americans their constitutional rights is interesting, Gerber doesn't go far enough, like Barnett has done, in analyzing whether any founding framer believed in the principle that the states could deny rights to "we the people", with the "people" being narrowly defined at that time.

Many constitutional law bloggers have easily exposed Scalia as an absolute hypocrite regarding his defense of original meaning when he often, and lately almost constantly, ignores that concept when needed to support a conservative political goal. Thomas's opinions require a much more thorough examination to expose his rationale for his rulings; Gerber for the most part is up to the task. If you are a Thomas fan, you'll get plenty of support for your position, if you are aghast at his findings, you will understand how far Thomas must twist reason to support his conservative ideology, and if you are like me, a person who thinks Thomas has unlimited potential but is also aghast at his rulings, you'll find evidence that maybe with time Thomas will begin to defend our reserved rights as time develops his jurisprudence, unfortunately the two new members will most likely have no positive influence on Thomas, providing support for narrow rulings with twisted logic to claim protection of rights while ruling in a manner that destroys those very rights.

Gerber bravely went where angels fear to tread, namely to view Justice Thomas as an Associate Justice and as an American rather than the hyphenated American Associate Justice. Thomas's views demand we consider the Founders thoughts, in much the same way Lincoln requested we do at Coopers Union that is to 'never supplant their logic when we know they understood the question better than we do.'

The vilification of Justice Thomas puzzles those who have read his opinions. To decry a Justice observing the contemplations of the Founding generation who created the American formula of, Liberty granting power to replace the previous and arbitrary power allows Liberty, seems oddly miscast. Those pundits who offer the idea of a color blind society, yet mock Thomas seem unaware of the paradox they create. As a society we are all aware of the want of historical background we have, and in no area are we lacking more than in Founding. Thomas's insistence that there exists areas that the National government has no power, reflects the Madisonian stance, as articulated in his Ninth Amendment beliefs; beliefs Thomas obviously comprehends.

Anyone wishing to escape the mandates of partisan politics would serve him, or herself well by reading this book, and then venturing forth and read some of Thomas's opinions, opinions which are well reasoned, and as devout to our American heritage as is possible.