Clarence Thomas' Use of Historical Sources

Until very recently, the largest portion of the Supreme Court's constitutional cases involved arbitrating differences between the federal government and the states over the extent of their respective powers.

The U.S. Constitution, in its original incarnation, created a federal republic-- neither a loose confederation, in which individual states obeyed the central authority only when it pleased them to do so, nor a unitary state, in which the federal government could overrule the states in any and all matters.

The Constitution delegated certain specified powers to the federal government, in the exercise of which it had supremacy; in all other matters the states retained sole and sovereign power.

Since the late 1930s, the Court has generally taken a very expansive view of the extent of the powers delegated to the federal government, and accorded it great authority to legislate in areas traditionally considered the domain of the states. When the federal government acts, state policy must take a back seat to congressional prerogatives. In several recent cases, however, the Supreme Court has shown a willingness to reexamine, or at least qualify, its pro-federal doctrine in this area.

One of the most notable of these cases, United States v. Lopez (514 U.S. 549, 131 L. Ed. 2d 626), came down as something of a shock to the legal establishment in the 1995 term.

Lopez involved a Texas high-school student who was prosecuted under the federal Gun-Free School Zones Act of 1990, which forbade anyone to knowingly possess a firearm on the grounds of, or within 1,000 feet of, a public, parochial, or private school. Mr. Lopez and his lawyers challenged the constitutionality of the statute, claiming that it exceeded Congress' power to legislate under Commerce Clause of the U. S. Constitution. The District Court upheld the constitutionality of the statute, but the U. S. Court of Appeals for the Fifth Circuit reversed and declared the statute unconstitutional. On certiorari, the Supreme Court affirmed the finding of unconstitutionality by a 5-4 vote; Justices Stevens, Souter, Ginsburg, and Breyer dissented.

This article is not the place to undertake a thorough investigation and evaluation of the Court's current Commerce Clause jurisprudence and its relation, if any, to the original understanding of the balance of power between the federal government and the states. Rather. this article focuses on the technique by which Justices ought to perform such an evaluation. Justice Thomas' concurring opinion in Lopez provides both a starting point for the evaluation and a model of this technique.

The starting point in the analysis of any constitutional provision is the text of the provision itself The Commerce Clause reads thus, "The Congress shall have Power....To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Thomas correctly recognizes both the importance of having a precise definition of one's terms and the need to look to materials from the period when a provision was added to the Constitution to avoid modern changes in meaning.

Words have different meanings in different time periods; if modern judges assume that words in the Constitution mean what they mean now, they will apply a fundamental law that no one ever ratified. Thomas seeks to precisely define the meaning of "commerce" in the clause above by looking first to the most obvious source, - dictionaries.

He cites three dictionaries roughly contemporary with the founding generation, Johnson's Dictionary of the English Language from 1773, Bailey's Universal Etymological English Dictionary from 1789, and Sheridan's Complete Dictionary of the English Language from 1796.

All these dictionaries define commerce as "trade" or "traffic," a which Thomas reinforces by citing the Latin derivation of the word (com (with); merci (merchandise)) from the modern Oxford English Dictionary. Thomas also uses the rules of English grammar to support his definition. As he correctly points out, Interjecting a modern understanding of commerce into the Constitution generates significant textual and structural problems.

For example, one cannot replace "commerce" [as defined above] with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place "with a foreign Nation" or "with the Indian Tribes."

Such grammatical problems, even taken alone, would suggest to us that an understanding of commerce which included manufacture, gun possession, or anything else would not accord with the way the framers understood the word.

Likewise, the structure of the Constitution makes Thomas' interpretation of the Commerce Clause more logical than his opponents'. As Thomas points out, an interpretation of the Commerce Clause which allowed the federal government to regulate all activity which "substantially affects" interstate commerce would make many of Congress' other delegated powers, such as the powers to coin money, fix weights and measures, establish post offices and post roads, and establish uniform rules for bankruptcies, superfluous.

Simple logic thus tells us that the framers could not have intended such an interpretation.

Next, Thomas cites the Federalist Papers, written by the framers and supporters of the Constitution to explain the meaning of the document to the public and convince them to ratify it. Since they were written to justify the Constitution in a time when, as distinct from the present, no one knew anything about it, the Federalist Papers are our best example of the founders speaking with a clear voice about what the document actually meant. As one might expect, given the definitional and grammatical evidence from above, the framers used the term "commerce" to mean "trade." Indeed, they often interchanged the two words. using them as synonyms in the same discussion. By contrast, when the framers wished to refer to activities other than trade, they used words other than commerce.

Next, and of crucial importance, Thomas cites records from the debate surrounding the ratification of the Constitution--not only the debates which took place in the state legislatures, but also letters and published articles. The materials pertaining to the ratification debates, perhaps even more so than other historical materials pertaining to the meaning of the words in the Constitution, are important because they give us the best idea of how the people at large--not the elite few wrote the document, but those whose votes made it law--saw the compact into which they were entering.

"We the People," after all, made the Constitution the law of the land--not the men who wrote it, and certainly not the judges, past and present, who have interpreted it. Not surprisingly, given the foregoing evidence, these sources likewise "reveal the relatively limited reach of the Commerce Clause and of federal power generally."'

Finally, Thomas moves to the familiar references used by Justices in crafting their opinions: Supreme Court precedents. Notably, Thomas cites the precedents only after a review of the primary source material on the Commerce Clause; he correctly realizes that "the ultimate touchstone of constitutionality is the Constitution itself and not what [the Supreme Court has] said about it."

Most of the precedents cited by the dissent are of recent origin. The dissenting justices in Lopez rest their analysis of early case law on an interpretation of Gihbons v. Ogden(22 U S. 1, 9 Wheat. 1, 1824), a case involving a conflict between a New York steamboat monopoly and a federal maritime trade licensing law.

According to the dissent, "Chief Justice Marshall's opinion....established that Congress may control all activities that "significantly affect interstate commerce."

Thomas disputes this interpretation. He notes that the law was sustained on the premise that navigation was a type of commerce, as the word was understood at the time, "and must have been understood. when the Constitution was framed."

As Thomas notes, the Court in Gibbons explicitly denied that Congress could regulate commerce "which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."

Thus, Thomas uses a wealth of historical resources to back up his position. This is as it should be. The task of a judge is to find the meanings of constitutional provisions in the intent of their framers and those who originally voted for them. The injunction to this duty follows from the simple fact that the Constitution is, as it states itself to be in Article VI, LAW -.

When justifying judicial review in Marbury v. Madison (1803), Chief Justice John Marshall based the Supreme Court's powers in this area on the fundamental truth that the Constitution is law, and that interpreting law is the province of the courts. In interpreting statutory laws, judges have always searched for the intent of the framers, if the Constitution is also law, it should be interpreted in a like manner.

The injunction to follow the original understanding of the Constitution is more than a simple logical requirement following from the nature of the document, though. By interpreting the Constitution as its framers meant for it to be interpreted, judges perform several important functions. First, they keep the meaning of the Constitution constant. The fundamental principles of a nation ought not to be changed on a whim, and for this reason the American people amend their Constitution quite infrequently. Judges ought not to amend it for them. Furthermore, Congress, the president, the states, and the people are entitled to know their rights and responsibilities before they act, without having to guess the personal opinion of the judges who will be evaluating their actions.

Originalism also maintains the separation of powers which the Constitution mandates. Whenever a judge makes a constitutional decision, he makes law, to a certain degree, by setting a precedent for interpreting a constitutional provision. But the judge who departs from the original understanding of a provision in effect drafts an entirely new provision, replacing the old. The Constitution delegates the power of amending the Constitution to Congress and the states, acting in the name of the people, and not to judges. The originalist judge, on the other hand, makes only small rules to fill out the grand designs of the original constitutional provision. His ultimate reference point is always the historical record of the provision's meaning, and not a precedent of his own creation. Thus, as an interpreter of the law, he acknowledges his subordination to those who originally created it.

Most importantly, though, in interpreting the Constitution as it was originally understood, judges remain faithful to the democratic process. As unelected officials whose decisions are not subject to review by the representatives of the people, judges are fundamentally undemocratic in nature. They can only be understood to serve the will of the sovereign, the people, if they act in the name of rules of law that the people approved at one time or another and have chosen to keep in effect.

The Constitution is a set of those rules of law upon which overwhelming majorities of Americans have agreed over time. As such, it represents the ultimate vox populi a mass declaration by American citizens of the fundamental principles on which they base their government and common political life.

When a judge interprets a constitutional provision differently from the way history indicates that it was meant to be interpreted, he substitutes something else (invariably his personal opinions) for what the people ratified. Thus, rather than the ultimate guardian of the people's principles, he becomes a tyrant, arrogantly overturning the foundations of the democratic state.

My point here has not been to resolve the debate over the proper extent of Congress' Commerce Clause powers. Perhaps an argument of equal or greater power may be made for a position different from that taken by Justice Thomas. But if such an argument is made, it should be made using historical resources in the same manner as Thomas has done, and not merely by citing its author's opinions or Supreme Court precedents. Justice Thomas has thrown down the gauntlet in what could well be a major duel over the proper extent of federal power. It remains for those who disagree with him to pick it up.

As Thomas notes, the Court in Gibbons explicitly denied that Congress could regulate commerce " -- which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."

The Constitution is a set of those rules of law upon which overwhelming majorities of Americans have agreed over time.
As such, it represents the ultimate vox populi a mass declaration by American citizens of the fundamental principles on which they base their government and common political life.

Many here at FR disagree with the basic concept that Congress is not enpowered by the Commerce Clause to prohibit commerce that is "completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."
-- These FReepers believe that our 'War on Drugs' is justified by "Congressional findings", -- opinions that prohibitions on dangerous products are a "necessary and proper" role of Congress.

Needless to say, many in Congress see firearms as 'dangerous products'.

Do you?

“Hmm, except that the Second Amendment sorta/kinda guarantees your right to bear arms regardless of how those politicians feel...not so much on your ‘right’ to smoke weed, snort coke, inject heroin, etc.”

It enumerates a god-given right.

Even without the BOR, we would have the right.

After all, it is we who grant power to the Government, not the Government which grants rights to us!

Hmm, except that the Second Amendment sorta/kinda guarantees your right to bear arms regardless of how those politicians feel...not so much on your ‘right’ to smoke weed, snort coke, inject heroin, etc.

...except for those pesky Ninth and Tenth Amendments that explicitly say that just because rights are enumerated in the first eight amendments, that doesn’t mean those are all the rights that exist. And there was no Procrustrian regulation of drugs in 1800.

Many here at FR disagree with the basic concept that Congress is not empowered by the Commerce Clause to prohibit commerce that is "completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."

-- These FReepers believe that our 'War on Drugs' is justified by "Congressional findings", -- opinions that prohibitions on dangerous products are a "necessary and proper" role of Congress.

Needless to say, many in Congress see firearms as 'dangerous products'.
Do you?

Hmm, except that the Second Amendment sorta/kinda guarantees your right to bear arms regardless of how those politicians feel...not so much on your 'right' to smoke weed, snort coke, inject heroin, etc.

Hmmm, you agree then that Congress can prohibit [unenumerated] 'dangerous products' because they have a power to "regulate commerce among the several States"?

Thanks for admitting it.
Under that type of reasoning your guarantee, -- your right to bear arms, is subject to how Congress "feels" about how dangerous a specific firearm can be found.
They've already made "findings" on machine guns. Are semi-autos next?

Looking at the link, was this actually published in the Spring of 97? I hope this kind of discussion is ongoing in legal circles. I tend toward the originalist myself,so I do have qualms about the war on drugs (which certainly hasn’t been successful). The Commerce Clause clearly was not intended to regulate firearms - the 2nd is merely putting in writing one of the rights that the original document assumed went without saying.

"It enumerates a god-given right."

Then god must have been pretty selective in that the Founding Fathers didn't think the right to keep and bear arms was protected for slaves. Or women. Or the Indians. Or foreigners. Or any non-citizen.

I thought a God-given right (like life or liberty) extended to every human being, not a select group.

"The Commerce Clause clearly was not intended to regulate firearms"

Speech is reasonably regulated, even though it's protected by the first amendment. Why is the second amendment immune from reasonable regulation? Or any other amendment for that matter?

How can this be? I read that Clarence Thomas was a dunderhead and the dumbest Supreme Court Justice ever appointed!

Or at least that was what press and dems would have you believe!

Mark

Interesting. This sounds like Thomas is laying the groundwork to challenge the overextension of the Commerce Clause which was done during the reign of FDR. By undermining the basis for the enormous expansion of federal authority into every tiny bit of the US economy, what is Thomas trying to do?

Imagine the massive undertaking of dismantling perhaps half of the federal government! Either that, or Congress would have to pass half a dozen amendments to the US Constitution, essentially superseding the rest of it in favor of Congress maintaining the status quo by just doing what it wants to.

Ironically, only the SCOTUS may be in the unique position to order the dismantling of big chunks of the government that have no Constitutional authority to exist. But the big question would be who would have “standing” to challenge such the existence of such institutions in the first place?

The SCOTUS acts as an appellate court for most cases, which means that Congress could prevent it from hearing such cases. However, cases where States are a party, they hear directly. This means an individual State or States could sue the federal government and challenge the right of a federal agency to exist. Congress could only stop that suit by impeaching Supreme Court justices.

If we see the Tenth truly enforced, and Justice Thomas is prepared to hold the walls against the howling horde in the Commerce Clause Wars, we could have some serious fun!

Where does the Constitution give the feds ANY power to regulate education? Or minimum wage? Or endangered species? Or water pollution? Or Social Security? Or the right to own bleeping thing (explosives, drugs, death rays, kiddie porn, poison gas, pictures of Hillary, etc.) you desire? Or gas mileage standards? Or regulate utilities? The states can control any of these. The feds cannot.

The federalist argument is in dire need of being heard. Let’s hear it!

“Congress shall make no law...abridging the freedom of speech, or of the press.”

“the right of the people to keep and bear arms, shall not be infringed.”

Maybe because it says what it says?

Looking at the link, was this actually published in the Spring of 97? I hope this kind of discussion is ongoing in legal circles.

It [the so-called 'states rights' issue] is, and always has been, the biggest Constitutional discussion going.

I tend toward the originalist myself,so I do have qualms about the war on drugs (which certainly hasn't been successful). The Commerce Clause clearly was not intended to regulate firearms - the 2nd is merely putting in writing one of the rights that the original document assumed went without saying.

And, - the document went without saying so - [without further enumeration], that ALL the free people of the USA had a right to own and carry arms. Todays socialists disagree, naturally enough; -- they claim that women, - non hostile Indians , - foreigners, - or any non-citizen, -- could have virtually any of our inalienable rights infringed under our original Constitution. -- Communitarian-socialism is a bizarre political disease, no?

Some even make the insane claim that because inflammatory [fighting word type] speech can be reasonably regulated as a misdemeanor, the same principle can somehow be applied to prohibiting the ownership & carrying of arms.
Or to any other individual right, for that matter.
- You ever hear of anything that weird before?

Where does the Constitution give the feds ANY power to regulate education? Or minimum wage? Or endangered species? Or water pollution? Or Social Security? Or the right to own bleeping thing (explosives, drugs, death rays, kiddie porn, poison gas, pictures of Hillary, etc.) you desire? Or gas mileage standards? Or regulate utilities?
The states can control any of these. The feds cannot.

Both the feds and the States are limited by our Constitutions [as amended] supreme laws.

The federalist argument is in dire need of being heard. Let's hear it!

The Constitutionalists argument is in even more dire need of being heard. Let's pay attention to hearing it from people like Justice Thomas...

“Absolute” certainly does not mean exactly the same thing as “unlimited” Firearms are generally speaking subject to the same restrictions as other forms of property. Of course, it goes beyond that: a person can be deprived of a firearm with due process of law. may be commendeered for the common defence, but it still has a highly symbolic meaning vis a vis the government. Our tradition, unlike Europe’s , does not supporting the disarming of the people. The States of the Union may go further than the general governmnt, but possesion of arms is a political right, not merely a personal one. Going a little further:possesing a firearm is a civil right and the ultimate guarantor of liberty against an overwheeming government.

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