Clarence Thomas-- The Most Important Justice?

[Scott Gerber]

Jack:

My argument about Thomas and the Declaration soon will be appearing in
print.  I'll mail you (and anyone else who wants one) a copy of it when it
does.

My statement "without question" was made because of the significant
*official position* Justice Thomas holds in the American regime.  Others,
of course, make a similar argument (most notably, at least as far as
political theorists are concerned, Harry Jaffa; see also my 1995 book To
Secure These Rights:  The Declaration of Independence and Constitutional
Interpretation (New York University Press)).

Best wishes,
Scott


At 09:33 AM 4/3/02 -0500, you wrote:
>Given that Mark Tushnet (and me, too, for that matter, among others too
>numerous to mention) has made this sort of claim about the Declaration in
>his scholarship, (indeed, this is a central theme of Mark's book, Taking
>the Constitution Away From the Courts) this suggests that the claim is
>fairly widespread in the constitutional literature and also quite
>indeterminate in its application.  It is a favorite gambit among scholars
>both liberal and conservative.  However, the idea that *Clarence Thomas* is
>the leading proponent of this view seems puzzling, and I'd love to see
>Scott's account of why this would be so, much less that it would be so
>"without question."  Indeed, before Scott's helpful post I wasn't even
>aware that Thomas had written anything significant on the Declaration,
>except for the usual ceremonial style speeches here and there that the
>Justices are wont to give from time to time.  Might we find this among his
>heretofore unpublished essays on Roe v. Wade?
>
>Jack Balkin
>
>At 12:00 AM 4/3/02 -0800, you wrote:
>>Date:    Tue, 2 Apr 2002 16:10:19 -0500
>>From:    Scott Gerber <s-gerber at ONU.EDU>
>>Subject: Re: Clarence Thomas-- The Most Important Justice?
>>MIME-Version: 1.0
>>Content-Type: text/plain; charset="us-ascii"
>>
>>I will be presenting a paper this weekend at a conference on the
>>Declaration of Independence at Princeton University in which I plan to say
>>that Justice Thomas is also important because of his views about the nature
>>of constitutionalism itself.  To make the point more directly, Justice
>>Thomas is without question the nation's leading proponent of the view that
>>the American regime was founded on the principles articulated in the
>>Declaration of Independence and that public policy should be made, and
>>assessed, in light of those principles.  He's in good company in this
>>regard:  Thomas Jefferson, Abraham Lincoln, and Martin Luther King, Jr.
>>
>>Whether Justice Thomas is the "most important" member of the current Court
>>is, of course, an empirical question.  The posts about the Epstein/King
>>article suggest we can't yet answer it.
>>
>>Best wishes,
>>Scott Gerber
>>Pettit College of Law
>>Ohio Northern University
>