Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

by Ralph A. Rossum

Overview

Though Clarence Thomas has been a Supreme Court Justice for nearly 25 years and has written close to five hundred opinions, legal scholars and pundits have given him short shrift, often, in fact, dismissing him as a narrow partisan, a silent presence on the bench, an enemy of his race, a tool of Antonin Scalia. And yet, as this book makes clear, few justices of the Supreme Court have developed as clear and consistent a constitutional jurisprudence as Thomas. Also little known but apparent in Ralph A. Rossum's detailed assessment of the justice's jurisprudence is how profound Thomas's impact has been in certain areas of constitutional law—not only on the bench but also even among some of his erstwhile disparaging critics.

During his years on the Court, Thomas has pursued an original general meaning approach to constitutional interpretation; he has been unswayed by claims of precedent—by the gradual build-up of interpretations that, to his mind, come to distort the original meaning of the constitutional provision in question, leading to muddled decisions and contradictory conclusions. In a close reading of Thomas's hundreds of well-crafted, extensively researched, and passionately argued majority, concurring, and dissenting opinions, Rossum explores how the justice applies this original meaning approach to questions of constitutional structure as they relate to federalism; substantive rights found in the First Amendment's religion and free speech and press clauses, the Second Amendment's right to keep and bear arms, the Fifth Amendment's restrictions on the taking of private property, and the Fourteenth Amendment regarding abortion rights; and various criminal procedural provisions found in the Ex Post Facto Clauses and the Bill of Rights.

Thomas grounds his original general meaning approach in the Declaration of Independence and its "self evident" truth that "all men are created equal"; that truth, he insists, "preced[es] and underl[ies] the Constitution." Understanding Clarence Thomas traces the many consequences that, for Thomas, flow from the centrality of that "self evident" truth, and how these shape his opinions in cases concerning desegregation, racial preference, and voting rights.

The most thorough explication ever given of the jurisprudence of this prolific but little-understood justice, this work offers a unique opportunity to grasp not just the meaning of Clarence Thomas's opinions but their significance for the Supreme Court and constitutional interpretation in our day.

Product Details

ISBN-13:	9780700619481
Publisher:	University Press of Kansas
Publication date:	12/17/2013
Pages:	304
Product dimensions:	6.40(w) x 9.20(h) x 1.00(d)

About the Author

Ralph A. Rossum is Salvatori Professor of American Constitutionalism at Claremont McKenna College. His many books include The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians and Antonin Scalia's Jurisprudence: Text and Tradition, both published by Kansas.

Table of Contents

Preface and Acknowledgments

Introduction

1. Thomas’s Original General Meaning Approach to Interpretation

2. Constitutional Structure and Federalism: The Commerce Clause

3. Constitutional Structure and Federalism: Other Federalism Questions

4. Thomas’s Original General Meaning Approach to Substantive Rights

5. Thomas’s Original General Meaning Approach to Criminal Procedural Rights

6. Thomas’s Original General Meaning Approach to Questions of Race and Equality

7. No Longer Doubting Thomas

Notes

Index

Editorial Reviews

"Rossum deftly navigates Thomas’s background and writings in way that—even if not enough to change the minds of Thomas’s critics—at least should improve public appreciation for Thomas’s work."—Political Science Quarterly

"Justice Thomas’s approach differs from that of Justice Scalia and the other forms of originalism being employed. This analysis may be the most important part of Rossum’s book, because with it he explains both Justice Thomas’s interpretive method and instances in which that method differs from that of Justice Scalia."—The Review of Politics

"[Rossum] does a marvelous job of capturing Thomas’s position and letting Thomas make his case for himself.—Claremont Review of Books

"Rossum performs an act of restoration, stripping away the layers of Justice Thomas’s public personal to show how the Justice's own writings provide a complete, nuanced picture of the man."—Harvard Law Review

“Understanding Clarence Thomas is a book that could not be more timely. As Justice Thomas approaches his twenty-fifth year on the highest Court, he and his jurisprudence are increasingly central to any proper understanding of contemporary constitutional law—and he could not have a better expositor than Ralph Rossum. Possessed of a formidable breadth of historical learning about American political and constitutional thought, and armed with a meticulous attention to the doctrinal details of the law, Rossum brings Thomas and his constitutionalism vividly to life. He shows clearly how Justice Thomas is in full agreement with the great chief justice John Marshall’s admonition that the meaning of the Constitution is to be found in the original meaning of that fundamental text and not in what Marshall dismissed as the mere ‘sympathies’ of the judge. In the end, Rossum makes clear that Justice Thomas is nothing less than a judicial treasure and an unyielding friend of the Constitution.”—Gary L. McDowell, Tyler Hynes Interdisciplinary Chair of Leadership Studies, Political Science and Law at the University of Richmond

“Rossum’s examination of the jurisprudence of Justice Thomas is thorough, well-documented, fair-minded, and admirably clear. Rossum sticks close to Justice Thomas’s judicial opinions and lectures, letting them speak largely for themselves. This is not to say that Rossum does not criticize inconsistencies and problems&,dash;he does—but his major objective is to explain Thomas’s ‘Original General Meaning’ approach to constitutional interpretation and to show how Thomas applies this approach in many areas of the law. Anyone who wants to understand Justice Thomas’s jurisprudence should read this book.”—R. Shep Melnick, O’Neill Professor, Boston College

From the Publisher