Many folks who read my blogs think I'm a leftist. I've often described my jurisprudence as somewhere between those two members of the Catholic majority on SCOTUS, Justice Thomas' and Justice Kennedy's. (Am I still a leftist?) Jonathan Adler at Volokh points to some book reviews about a new one on Justice Thomas. This excerpt shows the personal side of Justice Thomas and details, what I think, is a remarkable investment Thomas has taken in the life of his grand-nephew, whose fathers (Thomas' nephew) is in prison for dealing crack.
This review by Kenji Yoshino, of Yale, has a brief paragraph which focuses on Thomas' originalism:
Merida and Fletcher also fail to grapple adequately with the justice's jurisprudential methodology. Thomas is the court's most ferocious originalist, believing that the Constitution should be interpreted strictly according to the intent of its framers. But what does it mean for Thomas to interpret the Constitution according to the intent of those who would have considered him to be chattel?
I know that op-ed/book review space is short in the NYT. If this passage means to inform that the book should have detailed Thomas' answers to this dilemma, I agree. If, on the other hand, Yoshino is trying to jab at Thomas' originalism, he should know that Thomas has indeed grappled with this question and resolves it by adopting an originalist approach that entirely distinguishes his from that of Scalia's, Bork's and the other hard core originalists'. Thomas incorporates the Declaration of Independence's natural law/natural rights as part of constitutional law. Indeed, he justifies this approach almost entirely on the grounds that such is needed to get us out of slavery. (Plus, it is sound originalism -- what the Founders believed in!) Indeed, Thomas has been influenced by Harry V. Jaffa's and the Claremont Institute's argument.
So then, if the results are so desirable -- we get an anti-slavery Founding -- why then haven't Scalia, Bork, et al. endorsed such? Not only have they not endorsed the notion, they've bitterly attacked it! See this debate between Jaffa and Bork where Bork describes Jaffa's approach:
Written in dyspeptic prose, Original Intent and the Framers of the Constitution is one of the least coherent, least consequential, and most disingenuous pieces of constitutional theorizing on record: incoherent because Mr. Jaffa offers conclusions that cannot possibly be tortured out of constitutional text, history, or structure; inconsequential because, so far as is apparent, his argument has applicability only to one pre-Civil War case; disingenuous because he misrepresents not only that case but the Constitution itself. This may sound unduly harsh. I have tried to show that it is only duly harsh.
Yet, at the heart of Bork's distaste for the Declaration is his knowledge of the results which could yield were such to be embraced as part of constitutional law. The Constitution says nothing about men having an unalienable right to life, liberty and the pursuit of happiness. Here is Lino Graglia on the matter:
THE Constitution incorporates natural law because, according to Jaffa, it incorporates the Declaration of Independence. The Declaration, he thinks, constitutes "a compressed summary" and "perfection" of natural law, and the embodiment of "the ethical core of the Judaeo-Christian tradition" as well. The Declaration, however, consists largely of a lengthy indictment of King George III. It is hardly the sort of thing you would expect to find in a nation's constitution. What it is, of course, is a document meant to justify revolution -- that is, illegal action. Having no human law to rely on -- being in defiance of authority -- revolutionaries necessarily come to rely on the law of God, who, happily, rarely issues a protest.
Although he refers constantly to the principles of natural law, Jaffa never undertakes to list these principles or even define or describe them except by reference to the few phrases quoted above. To a lawyer, at least, this is highly unsatisfactory. If by law Jaffa means lawyers' law, as he seems to -- law enforceable against individuals by the power of the state -- his principles must meet the minimum requirements of such law. Legal rules must be stated in such form as to provide meaningful guidance to those to whom they apply and limit the discretion of those who must apply them. Nothing could be clearer, it seems to me, than that the quoted phrases from the Declaration do not do this. The last thing an opponent of judicial activism should want, I would think, is to authorize a Brennan, Douglas, or Blackmun to determine the content of "certain unalienable rights." Of course, the Justices have already undertaken to do this on their own, discovering such new "fundamental" constitutional rights as a right of "privacy," which somehow includes a right to an abortion.
THAT incorporating the Declaration and therefore "natural law" into the Constitution is a formula for judicial activism seems so clear to me that I have trouble understanding how it can be less than clear to anyone else.
So here we begin to recognize that the Declaration's natural law may get us out of a pro-slavery Founding, but into some results which social conservatives consider problematic. Indeed, Jaffa's famous line on the matter is that the Founding must be viewed through the lens of its ideals, not its compromises with those ideals. Here is how Robert Locke, an originalist of the Borkian variety, dealt with Jaffa's equation:
To argue that the essence of the Constitution lies in "the ideals of the Constitution, not its compromises," as Straussian scholar Henry [sic] Jaffa has done, is precisely the opposite of the truth. The compromises are of the essence of the thing, and these compromises deliberately and ruthlessly subvert attempts to abstract "propositions" out of it. The founders were perfectly well aware of the trouble abstract ideology can cause: in the 18th century, it produced the French Revolution; in the 20th, judicial activism.
Jaffa's response to this sentiment helps us understand what the fuss is all about. After all, we have a 13th and 14th Amendment. Slavery is unconstitutional according to even the most positivist reading of the document!
Without the distinction between the principles of the Constitution and the compromises of the Constitution no moral case for originalism is possible, nor is any case possible against the living constitution.
This is important: The moral integrity, not of the post-14th Amended Constitution, but the original Constitution of 1787 must be, according to Jaffa, established, otherwise invoking a Jefferson, Madison, Adams or Washington in the debate yields no moral authority. Robert Locke informs, indeed, he embraces, what the original Constitution might stand for, absent its grounding in the ideals of the Declaration:
Crucial facts about what America was founded on are deliberately hushed up by both liberals and conservatives and admitted only by the non-respectable Left and the non-respectable Right. Namely, that this country was founded upon conquest, slavery, sexism, and class rule. The Constitution, as originally written, holds that our ownership of this land by conquest is just, that Indians are savages, that blacks may be enslaved, that women have no fit role in government, and that the (little-remembered) restriction of suffrage to men of property by state governments is valid.
I agree with Jaffa that there is no way that these compromises can be defended as morally legitimate. Yet, I also agree with Jaffa's critics that a natural rights/ideals interpretation of the Constitution opens the door to results with which social conservatives would not agree.
The solution for the Jaffaites is to adopt a particular philosophical version of the natural law -- Thomism. And, under the rubrics of "Nature" and "Reason" (which are, after all, what America was founded on), synthesize Aquinas' natural law with Locke's/Jefferson's/Madison's natural rights.
Some problems for Jaffa's theory: It's not at all clear that, even though both appeal to the rubrics of nature and reason, Aquinas' natural law is the same thing as the Founders' natural rights. For one, Aquinas never spoke of unalienable natural rights, or grounded such theory in an a-biblical "state of nature" as Locke did. Secondly, the Founders themselves never cited Aquinas and could be quite hostile to Roman Catholicism, because of the Church's poor track record on rights. It would be quite ironic -- and a surprise to them! -- if these Founders who came from a Protestant context, really relied on a natural law theory with Roman Catholic origins. To further compound the irony, the Roman Catholic Church in its official dogma was quite late to sign onto the notion of liberal democracy and religious rights. Yet, to challenge Leo Strauss' notion that Locke and our Founders appealed to an a-biblical, non-Christian natural law source, that's exactly what cutting edge scholars on the matter have argued! Tom Van Dyke informs me that Brian Tierney of Cornell has most notably put forth this case. Van Dyke commented:
The quick and dirty answer is that they didn't know the source of their ideas. Aquinas>Vitorio>Saurez>Grotius, the lattermost being a respectable Protestant, and with whom they were quite well acquainted.
I have not yet dug up the scholarly record to comment on the soundness of Tierny's case. I remain skeptical. If Thomas could convince a majority of the Justices to incorporate the Declaration's natural law into constitutional law, unless they were all sympathetic to Aquinas' approach, the results which Bork, Graglia et al. fear might occur. The Founders clearly did believe that constitutional law should be grounded in a higher law, ascertainable from reason. So such ought to be viewed as a respectable originalist theory. And even the strictest positivist ought to realize that the Constitution needs a theoretical approach to ground it. Richard Posner thus surprisingly has a qualified sympathy for natural law, in order to "fill in the gaps" when needed. He writes:
I have a qualified sympathy for the idea of natural law. If a novel case arises--one that cannot be decided by subsumption under clear statutory or constitutional language or precedent--the judge will have to look elsewhere, and if one wants to call the elsewhere "natural law" I have no strong objection, as long as it is understood not to be Thomas Aquinas's concept of natural law. The vaguer, less consistent, more anachronistic, more gap-ridden, and more absurd the orthodox materials of judicial decision (constitutional and statutory text, precedent, etc.) are, the more the judges will be on their own in deciding cases. And that is the situation in which American judges, especially appellate judges, often find themselves. Whether they draw on economic theory or political principles, or on some inarticulate notion of what is fair or right, to decide cases in the broad open area of American law, they will be going outside the positive law in any useful sense of that term--and, as I say, if you want to call where they are going natural law, that is all right with me.
I agree. And would finish that whatever the origins of our Founders' conception of natural rights (Locke? Hobbes? Grotius->Aquinas->Aristotle?) the buck should stop with them. That is, the theory articulated by Jefferson, Madison, Wilson, Hamilton, et al. which is a tweaked Lockean/state of nature theory, is where we would begin. A final irony then: Thomas may be viewed as the most "conservative," that is hardest originalist jurist on the Court. Yet, his method of incorporating the Declaration's natural law, taken to its logical implications, likely would yield results with which social conservatives would disagree.