Clarence Thomas-- The Most Important Justice?
rbarnett at BU.EDU
Thu Apr 4 13:51:50 PST 2002
Steve Siegal writes:
> I am not sure if my post here misses the point of some of the comments on
> this thread, or if it is in the category of noticing that the new emperor
> is missing some clothes. But ... for Justice Thomas to draw from the
> Declaration of Independence, or be influenced by Douglass is one thing,
> but to do that an be an originalist is past understanding.
I don't think that Steve has missed the point because, until now, the
purpose of my prior posts was simply to substantiate the claim that Justice
Thomas has long been sympathetic to a interpreting the constitution in light
of the Declaration. I did not attempt to explain or defend this method
apart from citing to my Loyola article "An Originalism for Nonoriginalists"
and my article on Spooner that can be accessed at
Because the Spooner-Douglass position (with which Justice Thomas expressed
sympathy in his 1987 Howard article) is not commonly articulated and not
part of today's Con Law canon, however, it is more easily understood if
read. In lieu of that, here are a few brief excerpts from Spooner's
account. My purpose in offering this is not to debate the merits of this
approach but merely to describe it for those not already familiar with it.
In *The Unconstitutionality of Slavery* (the first edition of which appeared
in 1845), Spooner argued that the primacy of natural justice meant that the
following rule of statutory interpretation, enunciated by John Marshall in
the 1805 case of United States v. Fisher, should be applied to the
Constitution as well:
"Where rights are infringed, where fundamental principles are overthrown,
where the general system of laws is departed from, the legislative intention
must be expressed with irresistible clearness, to induce a court of justice
to suppose a design to effect such objects."
Spooner's rendered this interpretive maxim as follows:
"1st, that no intention, in violation of natural justice and natural right
... can be ascribed to the constitution, unless that intention be expressed
in terms that are legally competent to express such an intention; and 2d,
that no terms, except those that are plenary, express, explicit, distinct,
unequivocal, and to which no other meaning can be given, are legally
competent to authorize or sanction anything contrary to natural right."
In short, "all language must be construed 'strictly' in favor of natural
But, given its rationale, this rule of construction is not symmetrical:
"The rule of law is materially different as to the terms necessary to
legalize and sanction anything contrary to natural right, and those
necessary to legalize things that are consistent with natural right. The
latter may be sanctioned by natural implication and inference; the former
only by inevitable implication, or by language that is full, definite
express, explicit, unequivocal, and whose unavoidable import is to sanction
the specific wrong intended."
What made this an "originalist" method was Spooner's commitment to search
for the objective public meaning of the relevant constitutional terms AT THE
TIME OF ADOPTION. If an innocent public meaning of the terms could be
identified than it should prevail over a meaning that violated fundamental
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