"Explaining" justices

[Volokh, Eugene]

    Oddly enough, conservatives actually believe that their views of the
law -- for instance, their views related to criminal law, or school
choice, or race preferences -- do indeed help citizens generally, and
the black lower class in particular.  It may be shocking for liberals
that conservatives would sincerely hold such a zany view, but (likewise,
oddly enough), it's shocking for conservatives that liberals would
actually sincerely think that liberals' failed policies would help
citizens generally and the black lower class in particular.  
 
    Yet many conservatives have come to accept the possibility that
liberals may simply be misguided and not hypocrites -- that they may
sincerely believe even many things that conservatives think are wrong,
to the point of being unbelievable.  I'm sure not all conservatives have
done that, but I know plenty of conservatives who have.  Might liberals
be persuaded to do the same?  Might they come to believe that Thomas
might be sympathetic to the interests of poor blacks (a group to which
he and those he loves or loved once belonged), even if they think that
his approach is unwise or unsound?
 
    Eugene
 


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
	Sent: Monday, June 04, 2007 10:24 AM
	To: Con Law Prof list
	Subject: Re: "Explaining" justices
	
	
	GLOUCESTER: Why, I can smile, and murder whiles I smile,
	And cry 'Content' to that which grieves my heart,
	And wet my cheeks with artificial tears,
	And frame my face to all occasions.

	3 Henry VI, III, ii

	I find the assertion of Thomas's symapthy to the interests of
the African-American lower class to be as empty as Gloucester's smile,
at least when it comes to his constitutional and statutory
jurisprudence.  There have been many opportunities and plenty of
doctrinal room for him to show that sympathy.

	Steve

	On Jun 4, 2007, at 1:05 PM, Rosenthal, Lawrence wrote:


		The Fourteenth Amendment, unlike the Thirteenth
Amendment and the Civil Rights Act of 1866, was written in race-neutral
terms.  As Earl Maltz and others have demonstrated, this was a quite
conscious decision made during the drafting process.  Thus, I see no
contradiction between Justice Thomas's position on affirmative action
and the text or original meaning of the Fourteenth Amendment.  It is a
perfectly plausible reading of history to conclude, as many scholars on
the left have done, that whatever constitutional power Congress has to
authorize race-conscious action resides in the Thirteenth and not the
Fourteenth Amendment.

		FWIW, I do not intend to "praise" Justice Thomas.  I
have many qualms about his jurisprudence.  But I find him to be a
remarkably principled and candid justice who has deserves better than he
has received at the hands of the academy.  I also believe that the
charge that he is hostile to the interests of minorites is particularly
unfair.  I find him to be extraordinarily sympathetic to the interests
of the the African-American lower class -- a group that, for the most
part, is particularly poorly understood by those in the legal academy. 

		Larry Rosenthal
		Chapman University School of Law


	
	-- 
	Prof. Steven D. Jamar                     vox:  202-806-8017
	Howard University School of Law           fax:  202-806-8567
	2900 Van Ness Street NW         mailto:stevenjamar at gmail.com
<mailto:stevenjamar at gmail.com> 
	Washington, DC  20008                 http://iipsj.com/SDJ/
<http://iipsj.com/SDJ/> 

	"Great people are those who make others feel that they, too, can
become great."  
	Mark Twain 



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