Clarence Thomas-- The Most Important Justice?

[Randy E. Barnett]

I am away from my files and cannot supply names and cites to all the articles
but I remember from my readings during the confirmation process that Justice
Thomas' early writings (perhaps 3-4 articles which largely were published
speeches) were replete with references to "higher law" and the Declaration's
explicit affirmation of natural rights.  This indeed, as I recall was their
basic theme.

I was able to retrieve this quote from Clarence Thomas, The Higher Law
Background of the Privileges or Immunities Clause of the Fourteenth Amendment,
12 Harv. J.L. & Pub. Policy 63, 63-64 (1989):

"[N]atural rights and higher law arguments are the best defense of liberty and
of limited government. Moreover, without recourse to higher law, we abandon our
best defense of judicial review--a judiciary active in defending the
Constitution, but judicious in its restraint and moderation.  Rather than being
a justification of the worst type of judicial activism, higher law is the only
alternative to the willfulness of run-amok majorities and run-amok judges."
(Notice the equal concern he expresses here about abusive majorities and abusive
judges.)

Perhaps list members will remember that, before anyone in the public had heard
the name Anita Hill, THIS was what worried Chairman Biden--who affirmed his
(Biden's) affinity for natural law and then grilled Justice Thomas to ascertain
to which version of natural law Thomas subscribed:

"And there's a third type of natural law, Judge. It's the one that mirrors how
the Supreme Court has understood our Constitution for the bulk of this century.
And it's the one that I believe most Americans subscribe to. It is this view of
natural law that I believe--I personally, to be up front about it--think is
appropriate. It is this view of natural law, the Constitution should protect
personal rights falling within the zone of privacy, speech and religion the most
zealously. Those rights that fall within that zone should not be restricted by a
moral code imposed on us by the Supreme Court or by unjust laws passed in
legislative bodies."

And it worried others as well.  The most noteworthy of these critics was
Laurence Tribe, who characterized Judge Thomas as "the first Supreme Court
nominee in 50 years to maintain that natural law should be readily consulted in
constitutional interpretation."  Laurence H. Tribe, 'Natural Law' and the
Nominee, N. Y. Times, July 15, 1991, at A15.  For a list of others who
criticized Thomas' reliance on natural law, see Ken Masugi, Natural Right and
Oversight: The Use and Abuse of "Natural Law" in the Clarence Thomas Hearings, 9
Pol. Communication 231, 235-37 (1992).

The irony here, of course, was that Robert Bork had been skewered essentially
for being too much of a positivist who abhored unenumerated rights and who
thought the Ninth Amendment was analagous to an "inkblot" (his word) on the
Constitution that one could not penetrate.

When Thomas at his hearing denied that he believed judges should make decisions
directly based on their reading of natural law, critics were quick to contend
that he was dissembling--though nothing in his articles explicitly contradicted
his public stance.  For a defense of the coherence of this position, see Russell
Hittinger, Natural Law in the Positive Laws: A Legislative or Adjudicative
Issue?, 55 Rev. of Politics 5, 22 (1993) ("[T]here is nothing contradictory in
arguing, on the one hand, for a natural law basis of government, and indeed of
positive law itself, while at the same time holding that judges ought, whenever
possible, to be bound by written law.").

Finally (as I have explained in my Loyola Law Review article, "An Originalism
for Nonoriginalists") I too do not see any contradiction between adhering to
natural rights and also to the original meaning of a written constitution that
provides adequate procedural assurances that these background rights are being
protected from violation.

Randy

______________________________________
Randy E. Barnett
Visiting Professor
Harvard Law School
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