I. Unenumerated Rights and Substantive Due Process
Review of: The Supreme Court Opinions of Clarence Thomas, 1991–
2006: A Conservative’s Perspective by Henry Mark Holzer (Jeffer-
son, N.C.: McFarland & Company, 2007)
INTRODUCTIONClarence Thomas is the most interesting justice to sit on the Su- preme Court in a generation. His opinions are rigorous, consistent, and unintimidated by the intellectual fads that have swept through the legal elite for the past half century. Despite what some have said, Thomas is not a libertarian by any stretch of the imagination.1 *Senior Staff Attorney, Pacific Legal Foundation; J.D. 2002, Chapman University School of Law; B.A. 1998 Hillsdale College. Thanks to Professor Stephen Cox.
1 See, e.g., Tomiko Brown-Nagin, The Transformative Racial Politics of Justice Tho- mas? The Grutter v. Bollinger Opinion, 7 U. PA. J. CONST. L. 787, 788 (2005) (referring to “Justice Thomas’s ‘originalist’ interpretation of the Constitution and libertarian po- litical philosophy”); William McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of 535 New York University Journal of Law & Liberty [Vol. 4:535 536 As his recent memoir made absolutely clear,2 Thomas is a religious conservative whose views on law and politics are deeply influenced by his Catholic faith and by historical tradition. Yet his decisions bear a certain affinity with libertarian views, in which he is quite conversant. His jurisprudence is probably best described in Scott Douglas Gerber’s term, as “liberal originalism” 3 : a version of originalism closer to the Jeffersonian principles of individual liberty articulated in the Declaration of Independence than the “conserva- tive originalism” associated with Robert Bork and others who dep- recate Jeffersonian principles and cling to the “civic republicanism” interpretation of the American Revolution.4 Justice Thomas’s decisions are therefore not only intrinsically in- teresting, but they also offer an opportunity to evaluate some of the controversies within the category of conservative jurisprudence. One looks to Henry Mark Holzer’s book,5 a revised edition of his earlier The Keeper of the Flame: The Supreme Court Opinions of Justice Clarence Political Contribution Disclosure, 6 U. PA. J.CONST. L. 1, 40–41 (2003) (referring to “libertarians such as Justices Thomas and Scalia and possibly Justice Kennedy”); Melvin Simensky, Does the Supreme Court Have a “Liberal” or “Conservative” Intellectual Property Jurisprudence?: An Evening with Kenneth Starr & Martin Garbus, 11 MEDIA L. & POL’Y 116, 139 (2003) (“Justice Thomas... is just decidedly libertarian.”); Ernest A.
Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v.
Raich, 2005 SUP. CT. REV. 1, 6 (“Justice Thomas’s conservatism has shown a libertarian streak....”). Probably most astonishing is Steven G. Calabresi’s statement in Steven G. Calabresi, The Libertarian-Lite Constitutional Order and the Rehnquist Court, 93 GEO. L.J. 1023, 1044 (2005), that Justice Thomas’s dissent in Lawrence v. Texas was “a libertarian statement... in opposition to anti-sodomy laws which he called silly,” and takes his dissent as “evidence of the current libertarian bent of the Supreme Court”! To be fair, Justice Thomas has never described himself as a libertarian. See Interview by Bill Kauffman,with Clarence Thomas, Chairman, Equal Employment Opportunity Comm’n, in D.C. (Nov. 1987), reprinted in FREE MINDS & FREE MARKETS: TWENTY-FIVE YEARS OF REASON 142, 146 (Robert W. Poole, Jr. & Virginia I.
Postrel eds., 1993) (Q: “So would you describe yourself as a libertarian?” A: “I don’t think I can.”) 2 CLARENCE THOMAS, MY GRANDFATHER’S SON: A MEMOIR (2007).
3 SCOTT DOUGLAS GERBER, TO SECURE THESE RIGHTS: THE DECLARATION OFINDEPENDENCE AND CONSTITUTIONAL INTERPRETATION 6 (1995).
4 See generally Timothy Sandefur, Liberal Originalism: A Past for the Future, 27 HARV.
J.L. & PUB. POL’Y 489 (2004).
5 HENRY MARK HOLZER, THE SUPREME COURT OPINIONS OF CLARENCE THOMAS,
Thomas, 1991–2005,6 with hopes that it will enlighten on these matters. Unfortunately, the book is not a scholarly work but a polemic, which employs the language and analysis of partisan debates. It is a superficial, uncritical, occasionally misleading apologia for Justice Thomas as “a formidable intellect and staunch defender of the Constitution.”7 While that description is largely apt, Thomas’s jurisprudence does have significant blind spots, which an objective analysis could profitably illuminate. Holzer’s book lacks the necessary critical eye, and it appears that this is partly due to the fact that Thomas’s errors are shared by Holzer himself. Although he started out as Ayn Rand’s personal attorney, and published articles in her magazine, The Objectivist, Holzer is today a conservative, an opponent of abortion rights, an advocate of animal rights, and a defender of a vision of federalism and “judicial restraint” that at times elevates state power over liberty as a central constitutional value.8 Moreover, Holzer’s uncritical defense of Thomas provides little insight to those already familiar with the broad outlines of the justice’s views. Readers would be better served by other sources, such as Gerber’s First Principles: The Jurisprudence of Clarence Thomas, which although now outdated, provides an enlightening comparison of Thomas’s views with those of other conservatives such as Justice Antonin Scalia.9 In this review, I can focus only briefly on the subjects of unenumerated rights and substantive due process, federalism, and originalism. I hope to show how in each case, Holzer misses the bigger picture, and to explain how that failure is indicative of some of the weaknesses
HENRY MARK HOLZER, THE KEEPER OF THE FLAME: THE SUPREME COURT OPINIONS6 OF JUSTICE CLARENCE THOMAS, 1991–2005 (2006).
HOLZER, supra note 5, at 1.
7 See, e.g., Henry Mark Holzer, Barack Obama and Government-Mandated Infantcide [sic], 8 NEW MEDIA JOURNAL, Sept. 19, 2008, http://www.newmediajournal.us/staff/h_holzer/ 2008/09192008.htm (visited July 20, 2009); A.M. Lamey, From Ayn Rand to Animal Rights: An Interview with Henry Mark Holzer, SANS EVERYTHING, Oct. 24, 2007, http://sanseverything.wordpress.com/2007/10/24/from-ayn-rand-to-animal-rights-aninterview-with-henry-mark-holzer-2/ (visited Apr. 18, 2009).
9 SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCETHOMAS (1999). Holzer claims that his book is “the first to examine Clarence Thomas’s entire body of Supreme Court opinions,” HOLZER, supra note 5, at 2, but he never cites Gerber’s 1999 book which, although it did not purport to examine all of Thomas’s decisions, did provide a critical and perceptive review of Thomas’s work up to that time.
New York University Journal of Law & Liberty [Vol. 4:535 538 of mainstream conservative jurisprudence. Mainstream conservatives could learn a great deal from Justice Thomas, if they apply a more critical eye to both his jurisprudence and their own.
I. UNENUMERATED RIGHTS AND SUBSTANTIVE DUE PROCESSOne of Holzer’s primary themes is the constitutional theory known as “substantive due process.” This is the theory under which the Supreme Court has often invalidated state laws for violating the Fourteenth Amendment’s Due Process Clause. That Clause declares that “no person” shall be “deprived of life, liberty, or property without due process of law,”10 and controversy continues to swirl around whether this language “bar[s] certain government actions regardless of the fairness of the procedures used to implement them.”11 Since the Progressive Era, when criticisms of substantive due process theory began in earnest, its opponents have portrayed it as merely an excuse for judges to impose their personal political desires on states through strained interpretations. Its defenders point out that substantive due process is a longstanding theory resting on a solid theoretical framework.
However, in a manner common with conservative commentators, Holzer fails to provide any serious consideration of the meaning of substantive due process. He never mentions Lochner v. New York,12 perhaps the most notorious of all substantive due process cases. Nor does he refer to Loan Association v. Topeka,13 Hurtado v.
California,14 nor Justice Stephen Field’s dissent in Munn v. Illinois,15 generally considered the three gateway decisions to the theory that only much later came to be called “substantive due process.”16 Holzer instead starts his discussion with Griswold v. Connecticut,17 a case which found that the Due Process Clause was violated by a state law forbidding doctors from advising married couples about contraception. The Court found that although the Constitution does not
Daniels v. Williams, 474 U.S. 327, 331 (1986).
11 12 198 U.S. 45 (1905).
13 87 U.S. (20 Wall.) 655 (1875).
14 110 U.S. 516 (1884).
15 94 U.S. 113 (1877) (Field, J., dissenting).
16 See G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 241–48 (2000).
specifically protect the right of married couples to make intimate decisions without interference by the state, the Bill of Rights taken as a whole necessarily implies the existence of a zone of privacy which includes such a right. In the Court’s words, this zone of privacy is formed by “penumbras,” or shadows, that “emanate” from the specific guarantees of the Constitution.18 To focus on Griswold is a misleading way to approach this subject. Griswold is an easier target than its predecessors in the substantive due process tradition, given its eccentric language and the hypocrisy of its author, Justice William Douglas (who showed far less respect for such explicit constitutional guarantees as property rights).
By attacking substantive due process theory through the relatively vulnerable Griswold opinion, Holzer evades more complex theoretical questions, and settles instead for repeating the hoary conservative myth that the theory is merely “a tool-for-all seasons” by which judges can “invent some constitutional peg on which to hang their hats, some hitherto unknown ‘fundamental right,’” so as to nullify laws that they personally dislike.19 This is a caricature of a vital constitutional theory, a theory supported by a strong logical argument and at least a century and a half of compelling precedent. Substantive due process holds that certain enactments by legislatures are void because they lack either the formal or substantive ingredients necessary to qualify such enactments as “law.” This point is easy enough to understand when a bill lacks the formal ingredients of law: imagine, for example, a bill passed by both houses of Congress but not signed by the president. Were the police to enforce this “law” by arresting people, those people would naturally protest because the bill had not been validly enacted, and was therefore not “law.” It might be called a bill, or a resolution, or a declaration, or a pronunciamiento, but it could not be a law. Therefore, for people to be arrested pursuant to it would mean that they had been “deprived” of their “liberty” without “due process of law.”20 18 Id. Holzer appears to have changed his views with regard to Griswold. In 1967, he referred to the case as having “released a powerful freedom fighter in [the Supreme Court’s] midst.” Henry Mark Holzer, The Constitution and The Draft (Part II), 6 THE OBJECTIVIST 361, 365 (1967).
19 HOLZER, supra note 5, at 134.
20 KERMIT ROOSEVELT, THE MYTH OF JUDICIAL ACTIVISM 120–21 (2006).
New York University Journal of Law & Liberty [Vol. 4:535 540 But the same analysis applies when a legislative enactment lacks the substantive elements of law, as when it exceeds the legislature’s constitutional authority. For example, the First Amendment prohibits Congress from making any law establishing religion. 21 Were Congress to pass a bill declaring the United States to be a Christian nation, such a purported “law,” even if satisfying every formal requirement, would exceed Congress’s authority and would therefore still not qualify as a law. The term “law” is reserved for those Congressional enactments that are consistent with Congress’s constitutional authority in both the formal and substantive dimensions. And, once again, any person arrested pursuant to such an enactment would rightly object that he was being deprived of liberty without due process of law. The content of legislation, therefore, can disqualify a legislative enactment from status as “law” just as easily as can any formal inadequacies. This is what Justice Field meant when he wrote that the Constitution “deals with substance, not shadows. Its inhibition[s are] levelled [sic] at the thing, not the name. It intended that the rights of the citizen should be secure against [certain usurpations] by legislative enactment, under any form, however disguised. If the inhibition[s] can be evaded by the form of the enactment, [their] insertion in the fundamental law was a vain and futile proceeding.”22 Substantive due process recognizes the fact that mere enactment by a legislature is not sufficient to validate an item as “law.”23 It is not enough, therefore, for critics simply to cast aspersions on the theory, or reject it out of hand as mere politics. That would be the straw man
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1866) (emphasis added).