|
|
The Supreme Court Opinions of Clarence Thomas,
1991–2006: A Conservative's Perspective, by Henry Mark
Holzer. McFarland, 2007, 232 pages.
The Constitution and Its Emanations by Stephen Cox
The title word "conservative" may create the wrong impression. At an earlier time in his career, Henry Mark Holzer was a member of the inner circle of Ayn Rand (1905–82), a writer who has exerted a major influence on libertarian thought. Holzer himself has been a courageous and determined advocate of individual liberties throughout his life as lawyer and professor of law. He leaves to the reader the task of deciding whether Justice Thomas is a libertarian or a conservative (160), but it is plain that he admires Thomas as a proponent of what I have no hesitation in calling a libertarian approach to constitutional law.
| | Stephen Cox
is editor of Liberty. |
|
Nevertheless, I put "a" before "libertarian approach," in recognition that libertarians are not all of the same mind when it comes to the interpretation of law. In this respect, there are at least two types of libertarianism:
- Result libertarianism. Result libertarians believe (or write as if they believed) that anything that advances the goal of individual freedom is meritorious. Thus, if the Supreme Court suddenly decided that Social Security is unconstitutional, not because there isn't any language in the Constitution that authorizes the creation of such a system (which there isn't), but because Social Security extends more benefits to women than to men (which it does, because women live longer than men) and therefore violates the Constitution's "equal protection" clause — then, well, according to result libertarians, we should all throw a party. In this view, it makes no difference what legal sophistry one uses, so long as one gets a libertarian result.
- Process libertarianism. Process libertarians believe (and try to live up to their belief) that the best protection for individual freedom is a framework of rational legal processes — sound laws, accurately expounded. They reject interpretive tampering with national and state constitutions. They assume that someone who does you good by illegitimate means will also do you bad, by the same means. Thus, while most libertarians probably support gay marriage, process libertarians were appalled by the initiative recently undertaken by the mayor of San Francisco, who stepped completely outside the constitutional framework by declaring, in effect, that a state law against gay marriage was invalid in San Francisco. Result libertarians applauded him.
My money is with the process libertarians. I believe that the practical losses one may suffer by being on their side are vastly outweighed by the practical gains. State constitutions are strong on certain individual liberties, and the federal Constitution is in most respects a model of libertarian thought. To interpret these documents fairly, giving their words the sense that their authors intended, is good for the cause of liberty, in the short term, usually, and in the long term, almost always. Granted, the First Amendment's guarantee that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" comes far short of erecting a "wall of separation" between church and state (Thomas Jefferson's phrase [1802], not in the Constitution). But I'm not much troubled by "In God We Trust" on our coins, or the eye of God on the Great Seal of the United States. If you are, I think you've got too much time on your hands.
|
| Constitutions are written
and ratified with the expectation
that their meaning will
not be changed except by regular
and deliberate process of
the body politic. |
|
But let's go beyond the issue of practical gains or losses. If you're worried about intellectual honesty, as Holzer is (8), you are much more likely to find it with the libertarianism of process than with the libertarianism of result. It is simply breathtaking, the degree to which presumed supporters of civil liberties have gone in amending the Constitution by judicial interpretation. I am, by profession, a literary histor-ian and critic, and I know I would be laughed out of my profession if, when I interpreted texts, I took the kind of freedoms with fact and logic that judges, lawyers, and professors of law routinely take when they interpret the Constitution. To preserve some minimal reputation for honesty, I try to make my interpretations represent the meanings that are actually present in the texts I study. I realize that good authors often create intentional ambiguities, and bad authors often create unintentional ones, but I make every attempt to avoid replacing even those ambiguities with the meanings that I myself would prefer to see.
Of course, no text interprets itself. Even apparently simple texts can pose interpretive challenges. In the Old Testament, I encounter the commandment, "Thou shalt not kill." The words are not as simple as they look. We know that the people to whom the commandment was given were, in the same set of documents, permitted or commanded to kill certain kinds of criminals and religious enemies. We can, therefore, quite properly conclude that the commandment means, "Thou shalt not murder" — i.e., thou shalt not kill a legally and religiously innocent human being. By interpreting the text in this way, we preserve its original meaning, as determined by our knowledge of its literary context. We interpret, but we do not invent.
Now suppose we go further. Suppose we assume that a text that is so important to so many people ought to be adapted to their changing needs and evolving perceptions of life. Or suppose we simply don't like the original meaning of the text. So we advance the thesis that there is a wider religious philosophy underlying "Thou shalt not kill," a philosophy based on the idea that laws are given by God for the benefit of the people, to promote the general welfare. This sounds plausible. And it is . . . plausible. Well, does capital punishment, or the slaying of one's religious enemies, really promote the general welfare? Perhaps not. And what benefit do people get from killing animals, even to eat their meat? Some experts now claim that a vegetarian diet is much healthier. So we announce, "Thou shalt not kill" means, "Thou shalt not kill any animals." And suppose we take the next step. Suppose we say that the biblical commandment, in which we have now discovered a prohibition against killing in general, plainly establishes a right to life; and if there is a right to life, then plainly it is a crime to take life. In short, "Thou shalt not kill" is a mandate for the police to arrest anyone who kills an insect.
If a literary interpreter or Bible scholar ever reasoned in this plausible way, even the vegetarian members of his profession would pronounce him mad. Yet this is the process of "interpretation" that the Supreme Court has been applying to the Constitution during the past 70 years.
It must be admitted that by interpreting the Constitution in this manner, the court has sometimes done much good. In the famous case of Griswold v. Connecticut (1965), for example, it decided that states do not have the right to outlaw the use of contraceptive devices. The Connecticut law in question, which Holzer properly pronounces "outrageous," was a gross affront to individual liberties (7). But to decide that it was prohibited by the Constitution, Justice William O. Douglas had to discover in that document a "right to privacy," a right that he could locate only among the "penumbras, formed by emanations from [the] guarantees" of the Bill of Rights.
| We can rid ourselves of bad
laws only by treating the Constitution
as a butterfly that is
constantly emerging from a
cocoon.
|
|
Shall we applaud this exercise in judicial spiritism? I think not. It was patently dishonest. Proceeding in the same way, the court might just as well have found that the emanations and penumbras of the commerce clause (another fecund source of diseased judicial interpretation) prohibit me from writing dirty verses in my diary. After all — to invoke two of the judiciary's favorite legal fictions — the diary might at some time be carried into the stream of interstate commerce and might then be found offensive to community standards.
The fact that none of this sounds surprising underscores an important fact: this is the kind of reasoning that the Supreme Court actually uses, as it daily substitutes its own wisdom for the meanings originally inscribed in the Constitution and the laws. Often its actions are immediately damaging to individual liberty; but every action that renders the Constitution malleable to imaginative reconstruction renders it less capable of defining and protecting liberty in the future.
The full theory of "authorial intent," or "original intent," or "originalism," as it has come to be called in American law, was developed by E.D. Hirsch, Jr., in two important, indeed fundamental, books: "Validity in Interpretation" (1967), and "The Aims of Interpretation" (1976). Hirsch is a literary critic and historian, primarily concerned with the interpretation of literary texts, not with the interpretation of the particular kind of text called a constitution — which brings up a question: does one really need to use the same rules for every text? What about the popular claim that the Constitution is such a peculiar kind of text as to require interpretation by methods that would never be applied to others? One hears that the Constitution is "living" and "evolving," and that it ought to "evolve," so as to adapt itself to new "conditions." In other words, we can rid ourselves of bad laws only by treating the Constitution as a butterfly that is constantly emerging from a cocoon.
Of course (as both Holzer and Thomas explicitly recognize), there are a lot of bad laws. So why not get rid of them?
One answer is that there's no reason to think that nine presidential appointees sitting behind a bench in Washington, D.C., will succeed at the task of discriminating the bad from the good, especially when their qualifications for the job consist mainly of political appointment, an exuberant imagination, and a total lack of argumentative scruples.
Another answer is: go ahead; rewrite the Constitution from the judicial bench. But while you're doing it, ask yourself: what's the sense of calling it a constitution? Call it something else — call it an essay that is constantly being written, call it a proposal that is always being voted on, call it Super Bowl XLII, call it anything you like, other than a constitution, because the purpose of a constitution is to say how things should be and to keep them that way. Do you believe that anything called a "constitution" could possibly be ratified if its proponents proclaimed, "This is a document that is going to keep changing in unpredictable ways, in a continual process of reinterpretation by people who have been educated to believe that it has no fixed and definite meaning"?
No one would answer yes to that question. Constitutions are written and ratified with the expectation that their meaning will not be changed except by regular and deliberate process of the body politic (as opposed to the internal debates of a politicized judiciary). It is because most of our fellow citizens still cherish that expectation that they are willing to respect decisions that honor the Bill of Rights, no matter how much they may dislike its particular applications. Constitutional guarantees may not extend as far as we might like, but they are no guarantees at all if we grant the idea that the Constitution can legitimately be treated as something that is always evolving new meanings, even if a particular new "meaning" momentarily expands the scope of individual freedom. And during the past seven decades, most of the Supreme Court's new "meanings" have contracted that scope, by licensing new assumptions of power by the federal government.
| Justice William O. Douglas
could locate a "right to privacy"
only among the "penumbras,
formed by emanations
from [the] guarantees" of the
Bill of Rights.
|
|
Enter Professor Holzer, who demonstrates that Justice Thomas is the Supreme Court's smartest and most consistent advocate of interpreting the Constitution according to its authors' original intent. In the process, Holzer illuminates many of the great controversies of constitutional law, providing a full, though not exhausting, account of Thomas' contributions to the "three pillars of American constitutionalism — separation of powers, federalism, and judicial review" (22). Holzer's conclusions, though concisely presented, are based on a complete survey of Thomas' judicial opinions (which are numerous enough to require 16 pages simply to list, in Holzer's helpful appendix).
Holzer is always clear and precise, both in his own analyses and in his criticism (favorable or unfavorable) of the analyses of others. He aptly describes "the decades-long metastasis of the 'Living Constitution's' malignant doctrines into most areas of American constitutional and statutory law" and explores the various intellectually interesting ways in which Justice Thomas has "fought against this anti-constitutional disease" (8).
The appeal of Holzer's book extends much farther than the audience of Supreme Court watchers and conservatives still angry (and they ought to be) over the controversy that surrounded Thomas' appointment. The book amounts to a seminar on constitutional law, its history and practice, and on the processes and specialized language of the Supreme Court. Ideas and customs that are ordinarily explicated (badly) at the length of hundreds of pages are swiftly and memorably communicated here.
The literary, as well as the intellectual, value of this book is substantial. Holzer understands the uses of scorn. After quoting some of Justice William J. Brennan's pompous asseverations — "Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. . . . Its majestic generalities and ennobling pronouncements are both luminous and obscure" — Holzer writes, "Not content to loose this blather, Brennan . . . " went on to loose some more, which Holzer then cites, to devastating effect (5). The key words are "loose," which is what you do with your bowels, and "blather," which is what most people are afraid to call the sage observations of elder statesmen. Holzer's not afraid.
Thomas, whom Holzer always knows how to quote for the greatest possible effect, turns out to be a good aphorist:
The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges. (75)
Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. (145)
Criticizing his colleagues for a decision giving the federal government virtually unlimited power to regulate commerce, Thomas writes, "Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it" (49).
Holzer's own aphorisms are also worth quoting. He knows what to do with a metaphor:
[Justice] Douglas prospected his way through the Constitution. Although what he found was fools' gold, it glittered enough to satisfy six of his colleagues. (7)
And Holzer knows how to state a plain truth:
The concept of a "Living Constitution" . . . means no Constitution at all. (6)
Holzer identifies the essential issue: do we have a constitution, or merely a set of judicial dogmas? I hope that the answer is, Yes, we still have a constitution. But if the answer is No to that, then Holzer's book may help us get it back.
|
| | | |
|
