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Monday, May 1, 2000

First Principles: The Jurisprudence of Clarence Thomas

Gerber Treats Justice Thomas with Respect and Intellectual Curiosity

The nomination of Clarence Thomas to the Supreme Court produced two confirmation “debates.” The first, of interest primarily to lawyers and other Supreme Court watchers, included occasionally fascinating exchanges about natural law, its role in constitutional interpretation, and contemporary constitutional issues. The second was the sorry spectacle of tawdriness that arose from the leaking of Anita Hill’s charges of sexual innuendo and off-color remarks by Thomas while he was her boss.

The fury of Thomas’s opponents barely cooled after the hearings. The visceral hatred that many academics and other leftists had toward Thomas has carried over to commentary about his tenure on the Supreme Court. As quoted by Scott Douglas Gerber in First Principles: The Jurisprudence of Clarence Thomas, the typical analysis ranges from the apocalyptic (Nat Hentoff’s “No new justice has ever before done so much damage so quickly”) to the truly bizarre. An almost hilarious example of the latter is the late judge A. Leon Higginbotham’s psychoanalysis of Justice Thomas in a law review article. Higginbotham characterized Thomas’s views as “shameful” and concluded that they were produced by his “racial self-hatred.”

These attitudes have poisoned the academy, as well, and have produced “research” on Justice Thomas that almost uniformly denigrates him and his work. In that regard, Gerber recounts an e-mail he received from a friend and fellow professor. This colleague warned Gerber that, unless his book was “very, very critical” of Thomas, Gerber’s “career may be damaged by the Thomas curse!”

Gerber, both a lawyer and a political scientist, sets as his goal to write a dispassionate analysis of Thomas’s early years on the Court. He succeeds admirably. The book is an engaging account that does not require of the reader an extensive background in constitutional law. Yet this is not dumbed-down “popular history.” Gerber devotes only a small portion of the book to nominee Thomas. His objective there is primarily to explore Thomas’s ideological roots and attitudes before the nomination and during the confirmation hearings, to help the reader understand Justice Thomas’s views in his Supreme Court opinions. In a similar vein, Gerber in only a few mercifully brief passages refers to Anita Hill and then only to describe the reactions of, primarily, Thomas’s political adversaries.

Gerber correctly identifies “federalism,” the question of state-national relations, as a central issue in Justice Thomas’s constitutionalism. His chapter on that topic is particularly well done. In a close examination of two significant cases, US. Term Limits, Inc. v. Thornton, and US. v. Lopez, Gerber succinctly presents the various opinions and lays out their textual and precedential foundations. In Term Limits the Court, by 5-4, held unconstitutional term limits placed by the people of Arkansas on their U.S. representatives and senators through a constitutional amendment. In Lopez the Court held the Gun-Free School Zones Act of 1990 to be an unconstitutional intrusion of the national commerce power into the reserved powers of the states.

Gerber concludes that Thomas’s dissent supporting states’ rights in Term Limits was incorrect, but that his concurring opinion supporting states’ rights in Lopez was correct. He rests those conclusions on Madison’s Federalist No. 39, which says that “in the sources from which the ordinary powers of government are drawn, [the central government] is partly federal and partly national.” Using his yardstick of “liberal originalism,” that is, interpreting the Constitution in light of certain influences outside its text (including the Declaration of Independence and the structure of federalism), Gerber believes that Justice Thomas’s “compact theory” in Term Limits is wrong. I am not convinced that Gerber ultimately makes his case, but his analysis is superb.

Lopez is significant as the first case in two generations to declare unconstitutional under the commerce clause an act of Congress that targeted private behavior. Thomas used re-invigorated federalism in Lopez to protect individuals and states against an overbearing national police power. From a libertarian perspective, it is interesting to speculate what Justice Thomas might say about the constitutionality of gun control in a case shorn of states’ rights considerations. He has given a tantalizing hint in Printz v. US., a more recent case that struck down portions of the Brady Act, also on federalism grounds. Concurring in the decision, Justice Thomas pointed out that the Second Amendment might be read to confer a personal right to bear arms, which therefore might raise obstacles to the federal government’s regulation of handguns. He approvingly quoted Justice Joseph Story’s characterization of the right to bear arms as the “palladium of the liberties of a republic.”

In sum, Gerber’s book is a breath of fresh air, because it treats Justice Thomas and his work with respect and intellectual curiosity. What emerges is a picture of a Supreme Court justice who can be counted on more than most to protect individual rights in cases about affirmative action, political and commercial speech, property rights, free exercise of religion, and associational rights.

Joerg Knipprath is professor of constitutional law at Southwestern University School of Law.