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Justice Thomas On Precedent:
In my earlier post I offer this as Lesson Three for watching the upcoming Supreme Court confirmation hearings:
LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.
On Pejmanesque, Pejman Yousefzadeh, observes:
One of the reasons why I like Justice Thomas is that while he respects precedent, he is willing to cast it off if the original precedential decision did not conform with original intent. And why shouldn't he? There is no point in compounding a mistake, after all.
He then links to his interesting Tech Central column, Needed: Thomist Jurisprudence. Here is a taste of that:
Those who -- like me -- are disheartened by the decisions in Raich and Kelo may potentially take heart in the hope that Justice Thomas's powerful dissents will have sown the seeds for the emergence of a Court majority in the future that will reflect Justice Thomas's thinking. Perhaps that new majority will be crafted via help from Justice O'Connor's successor -- who could do worse than to adopt Justice Thomas's approach to the law and to intellectual issues. As law professor Orin Kerr puts it, "The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless -- and particularly against powerless racial minorities -- feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea."
Let me take this as an opportunity to make two points:

First, Justice Thomas is a conservative politically, not a libertarian. I am completely certain of this because I have personally heard him say so very recently and with gusto. Nevertheless, while there are Thomas opinions with which I disagree (e.g. his dissent in Lawrence v. Texas), his philosophy of judging comes closest to the one I recommend, which shows how method should come before results. Where I disagree with him, it is incumbent upon me to show how he has deviated from original meaning (as I think he sometimes has done). I still find it interesting that Justice Scalia did not join Justice Thomas in his concurring originalist opinions in Lopez and Morrison, or Justice Thomas's originalist dissenting opinion in Kelo. In Kelo, Justice Scalia (along with Justice Thomas) joined Justice O'Connor's excellent, but nonoriginalist, dissent instead. I believe this tells us much about the different judicial philosophies of these two conservative justices.

Second, it is worth considering Justice Thomas's own words about precedent from his Kelo dissent:
The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning.
This is the judicial philosophy that I hope will be shared by whoever the President decides to nominate. Otherwise, "judicial conservatives" will forever be taking their orders from nonoriginalist justices of the past, rather than from the text of the Constitution to which they take their oaths, and which most of the people still think should restrict those who govern them.
Challenge:
"First, Justice Thomas is a conservative politically, not a libertarian. I am completely certain of this because I have personally heard him say so very recently and with gusto. Nevertheless, while there are Thomas opinions with which I disagree (e.g. his dissent in Lawrence v. Texas), his philosophy of judging comes closest to the one I recommend, which shows how method should come before results. Where I disagree with him, it is incumbent upon me to show how he has deviated from original meaning (as I think he sometimes has done)."

Slightly off topic, but I am curious how you can claim your allegiance to undiluted originalism while claiming that Lawrence was correctly decided (at least in outcome, if not reasoning). It seems to me a difficult position, but I'd be interested in hearing it out nevertheless.
7.3.2005 8:52pm
John Jenkins (mail):
That's a simple one. The Ninth Amendment evidences what Prof. Barnett calls the "presumption of liberty." Modern constitutional law presumes that government actions are valid for the most part (rational basis scrutiny), but he believes that proper allegiance to the ideals of the constitution requires the opposite approach: that the burden should be on the government to show that its actions are valid.

To that end, there are few, if any, articulable reasons to make consensual homosexual sex in the confines of one's home illegal. You additionally have the Fourth Amendment problem of reasonableness of any inquiry into such things that makes enforcement problematic and spotty because even the police really don't care to enforce such laws. (That leads to another issue that Prof. Volokh has written about, but is not a principle of constitutional law.)

Thus, as a constitutional issue, outlawing consensual homosexual acts in the confines of one's own home does not pass any level of scrutiny beyond the standard that 51% of the legislature at some point decided this was a good idea (Which for some judges would be enough, but that is not the constitutional scheme, otherwise why would we have a constitution *at all*? Anything would be permitted the government.)

Public health arguments are generally inapt because you're dealing with an insular group for the most part only harming one another and quite frankly public health vis a vis consensually transmitted diseases isn't the government's problem (I leave aside real public health issues: influenza, etc.).

The upshot is that for those who think the Constitution means something and who would give effect to all of its terms and who think Lawrence was wrongly decided themselves have the burden of proof of explaining why the Ninth Amendment (and Fourth) do not apply.
7.3.2005 9:47pm
Challenge:
That seems to me a dangerously elastic principle, and one which could be used to defend just about any invalidation.

So, the Ninth Amendment creates a penumbra of a "presumption of liberty," which the Court can use to invalidate any law it deems "unreasonable." That doesn't sound like like an originalism that takes its self very seriously.

The Ninth Amendment in its original context can only be applied to the federal government. Even Black's theory of full incorporation excludes it from application to the states via the Fourteenth Amendment. In a federal context, maybe there is an argument there, however.
7.3.2005 9:58pm
Simon (mail) (www):
Out of curiousity, are there any majority opinions that Thomas either authored or joined that diverge in some identifiable way from (what one may presume to be) his policy preferences? I know about his dissent in Lawrence, and other statements of the sort "I wouldn't choose to do this but . . .," but don't recall ever reading such things in the context where his vote counted for something.
7.4.2005 1:03am
John Jenkins (mail):
You want to use "penumbra" as a perjorative without engaging the idea. It's simple: laws are presumed impermissible restrictions of liberty unless the government can show why it is permissible. That;s not a penumbra. You're falling into the trap that those who opposed the Bill of Rights fell into: the fact of enumerating some rights does not mean there are no other rights.

"The Ninth Amendment in its original context can only be applied to the federal government. Even Black's theory of full incorporation excludes it from application to the states via the Fourteenth Amendment. In a federal context, maybe there is an argument there, however."

It depends on what you mean. I'm not particularly an originalist myself, since I believe that the enumerated rights are not the government's to give or take away.

Put another way: The Federal government is supposed to be limited to its enumerated powers and things necessary and proper to carrying out those powers. You'll note that ONLY the First Amendment is particularly addressed to the Congress.

Do you really believe that the founders intended to allow the states to take away people's arms, and quarter troops in the people's houses? Aside from that, the Ninth Amendment particularly speaks to rights devovling to the people and the states; to the extent that you support pure democratic majoritarianism at the state level, that means that everything is permissible if 50% +1 of the people think that's okay. The founders were not of that view, as I recall, otherwise why have the divided legislature and executive?

In any event, if something is a *right* it does not follow that the states can freely violate it while the federal government cannot. You can call that a penumbra if you wish; I prefer to call it a principle.
7.4.2005 3:53pm
Challenge:
"Do you really believe that the founders intended to allow the states to take away people's arms, and quarter troops in the people's houses?"

Are you suggesting Barron v. Baltimore was wrongly decided? Now that IS a "constitution in exile." And no I do not think the Founders intended to have states engage in those activities, but they trusted the people of those states to guard against local and state usurpations of "natural rights" which they may be deprived from time to time. Again, in a federal context, I see the Ninth Amendment having some potency, but not when it applies to the states. This is because it was NEVER intended, either at the time of its initial ratification or after the ratification of the Fourteenth Amendment, to apply against state action.
7.4.2005 9:11pm