Was law clerk justice clarence thomas the october term the

TO JUSTICE THOMAS?

Gregory E. Maggs∗

IV. Two Other Hypotheses Rejected .................................................509

V. My “General Original Meaning” Theory.....................................511

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I.TYPES OF ORIGINAL MEANING

3See, e.g.,Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578, 2595 (2008) (Thomas, J., dissenting) (declining to join the majority opinion because “the Court’s holding is not supported by the original meaning . . . or any reasonable interpretation of our precedents”).

4 This paragraph and the two that follow are adapted from Maggs, Federalist Pa-pers, supra note *, at 805–06. For more on this topic, see Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW.U.L.REV. 226, 229–31 (1988) (describing the original intent, original understand-ing, and original textual meaning as separate original meanings of the Constitution).

A second commonly discussed type of original meaning—the “original understanding”—is the collective meaning that the delegates who participated in the thirteen state ratifying conventions beginning in the fall of 1787 understood the Constitution to have.8 The original understanding may differ from the original intent because the Consti-tutional Convention met in secret and its records did not become pub-lic until many years after ratification of the Constitution.9 As a result, the ratifiers—except for the few who had participated in the Constitu-tional Convention10—could not know exactly what the Framers in-tended and they may have attached different meanings to the Consti-tution. The clearest way of discerning the original understanding of the ratifiers is to look at what they said at the state ratifying conventions.11 Another key method of discerning the original understanding is to consider the arguments made for and against ratification by Federalists

6See Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L.REV.1, 30 (1988) (noting that “those concerned with original intent consult such materials as Madison’s notes on the Federal Constitutional Convention”).

11Seeid. at 482.

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15See Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U.CHI.L. REV. 101, 111–25 (2001) (using the methodology to determine whether the word “commerce” in the Commerce Clause refers specifically to the exchange of goods or more broadly to any gainful activity).

16See 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 7, at 557–59 (listing the delegates who attended the Constitutional Convention); 3 DEBATES ON THE FEDERAL CONSTITUTION 662 (J. Elliot ed., 1836) (listing delegates at the Virginia ratifying convention).

17See, e.g., Paul Finkelman, Thomas Jefferson, Original Intent, and the Shaping of American Law: Learning Constitutional Law from the Writings of Jefferson, 62 N.Y.U. ANN.SURV.AM.L. 45 (2006).

18 U.S. CONST. art. III, § 2, cl. 1.

Some of the Framers at the Constitutional Convention may have thought that treaties would normally be self-executing (i.e., that they would not require implementing legislation).22 James Wilson, for in-stance, apparently held this belief. He wanted to amend the draft of the Constitution to require treaties to be approved not only by the Senate, but also by the House of Representatives.23 Wilson’s justification for this amendment suggests that he believed (and feared) that treaties would be self-enforcing just like any other laws. Madison’s notes re-cord: “Mr. Wilson moved to add, after the word ‘Senate’ the words, ‘and House of Representatives.’ As treaties he said are to have the op-eration of laws, they ought to have the sanction of laws also.”24 Al-though the Constitutional Convention ultimately did not amend the draft as Wilson wanted, the other delegates may have shared his ap-parent view that treaties would be self-executing. But ratifiers at the state conventions may have had a different understanding. Hamilton, for example, wrote in the Federalist Papers that treaties “are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.”25 Hamilton appears to have meant that the treaties will be commitments between the United States and other gov-ernments (i.e., sovereign and sovereign), not laws that apply directly to the people of the United States (i.e., the sovereigns’ subjects). If this interpretation is correct, and other ratifiers shared this view, then the original understanding may have differed from the original intent.

Originalists have different views on which original meaning should control interpretation of the Constitution. Many older Su-preme Court decisions specifically focus on the original intent. For example, in 1838, the Supreme Court announced that it would in-terpret the Constitution according to the “meaning and intention of the convention which framed and proposed [the Constitution] for adoption and ratification to the conventions of the people of and in

28 Lino A. Graglia, “Interpreting” the Constitution: Posner on Bork, 44 STAN.L.REV. 1019, 1024 (1991–1992).

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29 5 ANNALS OF CONG. 776 (1796) (remarks of James Madison on April 6, 1796), available at Li-brary of Congress, Annals of Congress, http://memory.loc.gov/ammem/amlaw/lwac.html (last visited April 10, 2009).

30 Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in AMATTER OF INTERPRETATION:FEDERAL COURTS AND THE LAW 3, 38 (Amy Gutmann ed., 1997). 31See id.

When I presented this essay at the New York University School of Law, the distinguished commentators assigned to comment on my thesis politely suggested two shortcomings with my inquiry. Professor Samuel Issacharoff seized on the premise of my essay that the Constitution may have more than one type of original meaning. He argued that this premise, if widely accepted, fundamentally un-dermines Originalists’ claims that the courts can legitimately inter-pret the Constitution only according to its original meaning. How can that be true, he asked, if more than one original meaning exists and judges must decide for themselves which one to follow? Ac-cordingly, an inquiry merely into which original meaning of the Constitution matters to Justice Thomas is necessarily incomplete; additional thought must be given to how Justice Thomas can justify originalism given the existence of multiple original meanings.

Mr. Tim Sandefur of the Pacific Legal Foundation saw the ques-tion addressed in my essay as overly narrow. The important issue to his mind is not whether Justice Thomas follows the original in-tent, the original understanding, or the original objective meaning. Instead, the crucial question is whether Justice Thomas gives weight to the broad general principles, especially natural law principles, upon which the Constitution was founded. To some extent, Mr. Sandefur extended this criticism of my essay to Justice Thomas’s jurisprudence, which he viewed as not wholly compatible with natural law principles as the Framers saw them.

In attempting to determine which original meaning matters to Jus-tice Thomas, I started with a definite hypothesis. Given that Justice Scalia concentrates his attention on the original objective meaning of the Constitution,37 and knowing that Justice Thomas and Justice Scalia usually agree on the outcome in constitutional cases,38 I presumed that Thomas would share Scalia’s views. I then went about looking for in-formation that would support or disprove this theory.

Finding cases in which Justice Thomas gave weight to evidence of the original objective meaning of constitutional terms was not difficult. Indeed, in one of his most famous constitutional opinions, his concurrence in United States v. Lopez, Justice Thomas sought to

42 545 U.S. 469, 508 (2005) (Thomas, J., dissenting) (citing 2 DICTIONARY OF THE ENGLISH LANGUAGE,supra note 41, at 2194).

43 128 S. Ct. 2578, 2596–97 (2008) (Thomas, J., dissenting) (citing WILLIAM BLACKSTONE, 4 COMMENTARIES *289; NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).

46 541 U.S. 509, 559 (2004) (Thomas, J., dissenting) (citing NOAH WEBSTER,AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 396 (1860); JOSEPH E.WORCESTER, DICTIONARY OF THE ENGLISH LANGUAGE 484 (1860)).

47 517 U.S. 843, 859–61 (1996) (citing 2M.FARRAND,THE RECORDS OF THE FEDERAL CONVENTION OF 1787 95, 305–08, 359–63 (rev. ed. 1966)).

54Id. at 126–27.

55Id. at 126. Whether Anti-Federalist statements provide reliable evidence of the original understanding of the ratifiers is a complicated question. In my view, in situations where Anti-Federalists and Federalists each understood the provisions of the Constitution to have the same meaning (but perhaps disagreed about the wis-dom of these provisions), their shared views presumably reflect the original under-standing of the ratifiers. After all, some of the Federalist and Anti-Federalist essayists were themselves ratifiers, and others wrote expressly for the purpose of influencing ratifiers. In contrast, when the Anti-Federalists and Federalists disagreed about the meaning of the Constitution, different inferences are possible. One is the inference that Justice Thomas makes in this opinion. See also Peter J. Smith, Sources of Federal-ism: An Empirical Analysis of the Court’s Quest for Original Meaning, 52 UCLAL.REV. 217, 259 (2004) (contending that Anti-Federalist interpretations might also be rele-vant “to demonstrate that the delegates at the state ratification conventions would never have voted to ratify the Constitution unless it accommodated their concerns”). But another possible inference is that the majority of the ratifiers rejected the views of the Anti-Federalists and adopted the views of the Federalists. Id. This inference seems especially justified when the Anti-Federalists ascribed a meaning to the Con-stitution that would have deleterious consequences that ratifiers would have been unlikely to support.

56 545 U.S. 1, 57 (2005) (Thomas, J., dissenting).

57Id. at 66 n.5.

weight to Jay’s pieces in The Federalist, and to Jefferson’s writings, even though neither of them was a Framer.60

In the cases cited above, Justice Thomas does not appear to have limited his use of these sources in the same manner. He does not just look for evidence of the original objective meaning. On the contrary, he has explicitly cited these sources for evidence of the original intent of the Framers or the original understanding of the ratifiers.

Professor Eskridge’s statement appears to describe accurately the practice of several current members of the Supreme Court. For instance, Justices Souter, Ginsburg, and Breyer all cite the Federalist

60 Scalia, supra note 30, at 38.

Yet Professor Eskridge’s theory does not appear to apply to Jus-tice Thomas. Thomas is an avowed Originalist. In his dissents, he often specifically criticizes the Supreme Court for straying from the original meaning of the Constitution.65 Accordingly, when he cites the Federalist Papers and other historic documents, he is in fact look-ing for the original meaning of the Constitution.

I also rejected the hypothesis that Justice Thomas might simply be insensitive to the possibility that some sources of the original meaning might be weightier than others. Although Justice Tho-mas—unlike Justice Scalia66—has not announced that he considers one type of original meaning to be more significant than another, he does recognize at least some hierarchy among sources of the origi-nal meaning. For example, in U.S. Term Limits, Inc. v. Thornton, Jus-tice Stevens wrote a generally Originalist majority opinion on the issue of whether states may impose qualifications on candidates for congressional office.67 In this opinion, Stevens relied heavily on Jus-tice Joseph Story’s historic Commentaries on the Constitution in con-cluding that states could not impose additional qualifications be-yond those specified in Article I.68
As noted above,69 Justice Thomas dissented. He, like Justice Ste-vens, took an Originalist view of the issue but was concerned with

67See 514 U.S. 779 (1995).

68See id. (citing JOSEPH STORY, 1 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 625 (3d ed. 1858)).

Justice Story was a brilliant and accomplished man, and one cannot casually dismiss his views. On the other hand, he was not a member of the Founding generation, and his Commentaries on the Constitution were written a half century after the framing. Rather than representing the original un-derstanding of the Constitution, they represent only his own understanding.70

Thus, Justice Thomas has decided that some evidence of the original meaning is more significant than other evidence.

71 520 U.S. 564, 575–77 (1997).

72 U.S. CONST. art. I, § 10, cl. 2 (“No state shall, without the consent of the Con-gress, lay any imposts or duties on imports or exports, except what may be abso-lutely necessary for executing it’s inspection laws.”).

74Id. at 630–31 (citing 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 7, at 588–89).

75Id. at 631–32 (citing J.ELLIOT, 2 DEBATES ON THE FEDERAL CONSTITUTION 57–58 (2d ed. 1891); Brutus 1, Oct. 18, 1787, in 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 415 (J. Kaminsky & G. Saladino eds., 1981); THE FEDERALIST NO. 32 (Alexander Hamilton)).

81See supra text accompanying notes 56–57.

82 545 U.S. 1, 58 (2005) (Thomas, J., dissenting).