Original Sin

Clarence Thomas and the Failure of the Constitutional Conservatives

Samuel A. Marcosson

• Publisher: NYU Press
• Year: 2002
• ISBN:
  9780814763100
• Topic: Diritto
• Subtopic: Diritto pubblico

Originalism is the practice of reviewing constitutional cases by seeking to discern the framers' and ratifiers' intent. Original Sin argues that the "jurisprudence of original intent," represented on the current Supreme Court by Justices Antonin Scalia and Clarence Thomas, has failed on its own terms. Attempts to determine the framers' intent have not brought greater determinacy and legitimacy to the process of constitutional interpretation. Instead, the method has been marked by the very flaws—including self-interested reasoning and the manipulation of doctrine—that originalists argue marred the jurisprudence of the judicial "activists" of the Warren Court.

Original Sin brings a rigorous review of the performance of the "new originalists" to the debate, applying their methodology to real cases. Marcosson focuses on the judicial decisions of Clarence Thomas, an avowed originalist who nevertheless advocates "color blind" readings of the Constitution which are at odds with the framers' ideas concerning anti-miscegenation and other laws. After critiquing what he sees as a troubling use of originalism and explaining why it has failed to provide a consistent basis for constitutional decision-making, the author goes on to offer an alternative approach: one that lends greater legitimacy to the Court's interpretations of the Constitution.

CHAPTER ONE

I NEVER LIE

There is an old logic trick, consisting of two statements and an assumption that the first statement is true:

I never lie.
I’m lying.¹

The listener ends up in a logical impossibility if she assumes the first statement to be true. She knows by assumption that the speaker never lies, so the second statement (“I’m lying”) must be true. But if it is true, then the speaker is lying—which is impossible, because the speaker never lies. The lesson, if there is one, is to question initial assumptions.

If Clarence Thomas were compelled to decide Loving v. Virginia, he would face precisely the same situation. The first of his two statements would be: “I always decide constitutional issues based on the original understanding of the framers, as discerned from the available historical evidence.”

Since Thomas has frequently said precisely this,² we are not being unfair to him if we assume for the moment that it is true. And if it is, the 1967 version of Justice Thomas would find his voice in an opinion dissenting in Loving. Rather than explaining why this is so, let us hear it from him directly (sort of).

Thomas, J., dissenting:

The most dangerous tendency for the members of this Court is to find in the Constitution those rights we most fondly wish were contained therein. For me, this threat has never loomed more prominently than it does today. Any reader familiar with my life as an American citizen will understand my abiding belief that no person should be prevented from marrying the love of his or her life, without regard to race or color.

But I write today not to express my views on what policies the Commonwealth of Virginia should adopt regarding interracial marriages. Nor do I express my opinion as to whether our Constitution ought to take this decision out of Virginia’s hands by prohibiting the states from adopting bans on such marriages.

Rather, I write as a Justice of the Supreme Court, bound by my oath of office to interpret the Constitution faithfully according to its terms. That oath compels me to conclude that nothing in the Constitution, as written and intended by its Framers, prevents Virginia from enacting the policy it has chosen.³ Because “[t]his case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable,”⁴ I must respectfully, and sorrowfully, dissent.

A.

The question before the Court is whether the Fourteenth Amendment’s Equal Protection Clause⁵ restricts the power of the States to bar interracial marriages.⁶ Answering this question requires us to determine the original understanding of what the text meant in 1868 when the Fourteenth Amendment was ratified. In determining the original understanding, it is tempting to say simply that the framers intended to create a “color-blind” Constitution, and to bar the states from utilizing any racial classifications. This was, famously, the view the first Justice Harlan expressed in his dissenting opinion in Plessy v. Ferguson.⁷ Since the Court correctly concludes that the Virginia statute at issue here classifies citizens by their race,⁸ it violates this understanding of the Equal Protection Clause.

Notwithstanding Justice Harlan’s views, however, the “color-blind Constitution” ideal is simply too general to constitute a basis for our decision. It represents an originalism so diluted as to be unrecognizable.⁹ The ideal might be useful as a general guidepost,¹⁰ but it cannot substitute for careful historical analysis of whether the framers of the Fourteenth Amendment intended to bar racial classifications in this particular area.¹¹ For this reason, our mandate is to search for the original understanding at the most specific level for which there is sufficient historical evidence to discern with confidence a relevant understanding.¹² If we knew nothing of the framers’ intent with respect to antimiscegenation laws in particular, then it would be appropriate to resort to a higher level of generality,¹³ perhaps even the very high level of abstraction represented by the “color-blind Constitution” ideal. That course, however, is foreclosed by the presence of evidence at the more specific level,¹⁴ evidence I next proceed to review.

B.

One of the best indications that the framers of the Equal Protection Clause did not intend to displace antimiscegenation laws is that those laws remained undisturbed in the years immediately following ratification.¹⁵ In the days and years immediately following passage of the Amendment, the states, both those of the former Confederacy and those that remained loyal to the Union, continued to enforce antimiscegenation statutes.¹⁶ In light of this record, it is implausible to believe that the framers of the Fourteenth Amendment intended to end the states’ power to ban interracial marriage; this weighs heavily in favor of the Commonwealth’s position.

This post-ratification record is consistent with the compelling evidence that when it was ratified, the Fourteenth Amendment was not understood either to establish a general principle of color-blindness or to affect antimiscegenation laws. As for the general principle, some of the sponsors of the Amendment had earlier proposed language explicitly barring governments from using racial classifications of all kinds.¹⁷

Congress repeatedly rejected such a measure, however, choosing the far more ambiguous language of the present Fourteenth Amendment. . . . Color blindness, then, was explicitly rejected as constitutional text....¹⁸

Lest we understate the differences between pure color-blindness and what was actually enacted, it is well to recall that one of the principal advocates of color-blindness, Wendell Phillips, called the Fourteenth Amendment “a fatal and total surrender,” “an infamous breach of the national pledge to negroes . . . a party trick designed only for electioneering purposes.”¹⁹ Raoul Berger puts it plainly:

When we look to the soil from which the Fourteenth Amendment sprang, attribution to the framers of the aim of creating uncircumscribed racial equality is like insisting that roses bloom in the Sahara Desert.²⁰

The majority is thus quite wrong to suggest that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the states.”²¹ Perhaps color-blindness is the applicable principle in one or more particular contexts; we need not resolve that issue today. But plainly it is not the general principle guiding Fourteenth Amendment analysis.

Even if color-blindness were the governing principle intended by the framers of the Equal Protection Clause, there is yet another, insuperable difficulty with the majority’s analysis. The Fourteenth Amendment was designed to provide equal protection of “the ‘person and property’ of blacks against violence.”²² This protection manifestly was not intended to extend to areas that were not at the time considered “civil rights.” The framers of the Fourteenth Amendment drew what Professor Richards aptly characterizes as:

a sharp distinction. . . between equality in basic rights like protection of life, liberty, and property and rights to social and political equality (in marriage, schooling, and voting), applying equal protection to the former but not the latter.²³

More consistently with the terminology of the time, Professor McConnell calls the protected category “civil rights.”²⁴ However phrased, the crucial point is that any right deemed a matter of “social equality” is not protected by the right to equal protection of the laws.²⁵

Marriage fits within the class of “social rights.”²⁶ As a result, the Fourteenth Amendment does not guarantee equal protection with respect to a state’s marriage laws.²⁷ Indeed, the “social rights” formulation was the primary answer given by sponsors of the Amendment to the charge that ratification would result in widespread interracial marriage.²⁸ It therefore most accurately reflects the understanding of the Amendment held by those who decided to include it in our foundational document.²⁹ Indeed, antimiscegenation laws may represent the archetype of the racialism in “social rights” left undisturbed by the Equal Protection Clause.

The inclusion of marriage in the class of unprotected social rights provides compelling, perhaps irrefutable evidence that antimiscegenation laws were unaffected by the Fourteenth Amendment. If any more proof is required, it is supplied by the amendment’s sponsors’ direct, unequivocal statements on the precise question of antimiscegenation laws. Even a recent scholarly attempt to use debates regarding the Civil Rights Act of 1875 (hereinafter the “1875 Act”) to build a case that the Fourteenth Amendment rendered antimiscegenation laws unconstitutional³⁰ concedes that prior to 1868, during debates over the Civil Rights Act of 1866 (hereinafter the “1866 Act”) and the Fourteenth Amendment, Republicans denied that antimiscegenation laws would be affected by their proposals.³¹ In response to Democratic accusations that the 1866 Act would make state antimiscegenation laws illegal, “Supporters. . . immediately sought to allay concerns that the bill would repeal” those laws.³² In light of this, the evidence is overwhelming that the framers and ratifiers of the Fourteenth Amendment neither expected nor intended to nullify state antimiscegenation laws. For me, that is the end of the matter.

C.

I am forced to conclude that the framers of the Fourteenth Amendment did not intend to create a “color-blind Constitution,” and certainly did not intend to do so insofar as antimiscegenation laws were concerned. Ratification of the Amendment was based, at least in significant part, on assurances by its supporters that these laws would not be affected.

The majority takes substantial comfort, I presume, in its confidence that it today reaches the “right” decision—right in terms of the moral rights of free people not to be subjected to odious government interference in their personal lives on the basis of the color their skin. I have no doubt that this is the “right” decision for our nation to make on this question. I would take greater comfort, however, had the nation actually done so, through the constitutional amendment process designed for the People to make such fundamental decisions to alter the way we govern our affairs.³³ I agree with Professor Tribe that we must reject interpretive methods “that would treat the Constitution as amendable by procedures nowhere specified therein.”³⁴ Since I am convinced that the Fourteenth Amendment, as originally understood by those who supported and ratified it, did not alter Virginia’s power to enact and enforce the law at issue today, I dissent.³⁵

This opinion undeniably represents the position a staunch originalist would have taken in Loving.³⁶ If Justice Thomas took this stance, it would validate our assumption that the first statement (“I’m always an originalist”) is true.

But the c...