ISSN 1062-7421
Vol. 12 No. 7 (July 2002) pp. 360-362

ORIGINAL SIN: CLARENCE THOMAS AND THE FAILURE OF THE CONSTITUTIONAL CONSERVATIVES by Samuel A. Marcosson. New York: New York University Press, 2002. 218 pp. Cloth $35.00. ISBN: 0-8147-5640-9.

Reviewed by Scott D. Gerber, College of Law, Ohio Northern University.

Before leaving to become the academic publisher at Oxford University Press, Niko Pfund helped turn New York University Press into a leading academic publisher of legal studies books. Samuel A. Marcosson's new book in NYU Press's Critical America series is another provocative addition to its strong list. Marcosson, a law professor at the University of Louisville, is much less sympathetic to Justice Thomas than he says I am in my FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS (1999; expanded edition 2002). To his credit, though, Professor Marcosson doesn't engage in vitriolically-partisan Thomas-bashing like that of another anti-Thomas book, Christopher E. Smith and Joyce A. Baugh, THE REAL CLARENCE THOMAS: CONFIRMATION VERACITY MEETS PERFORMANCE REALITY (2000).

Professor Marcosson argues that the originalism of Justices Thomas and Antonin Scalia has not only failed to provide greater determinacy and legitimacy to constitutional interpretation but also has been marked by the very flaws-self-interested reasoning and manipulation of doctrine-that originalists accuse liberal judicial activists of. He maintains, in short, that the Court's most conservative jurists are simply conservative political activists in black robes. He writes:

"We can say one thing, though, about Thomas and Scalia's non-originalist opinions; they could have been written by the drafters of the 1996 Republican Party platform. It opposed affirmative action as a violation of the 'color-blindness' principle, endorsed the ongoing reinvigoration of the Takings Clause, decried criminal procedure 'technicalities' such as the exclusionary rule, and called for the devolution of authority from the federal government to the states. The non-originalist positions taken by the conservative wing of the Supreme Court have far more in common with the 1996 Republican Party than they do with the 1789 Federalists" (p. 76).

The first part of Professor Marcosson's book, in which he attempts to prove this thesis, consists of five chapters. Chapter 1, which I had previously read when it appeared in the journal LAW AND INEQUALITY, is a pseudo-Critical Race exegesis on Justice Thomas's life: Thomas is transported back in time to the days of the Warren Court and is asked to write an opinion in LOVING v. VIRGINIA (1967), the landmark case that struck down Virginia's antimiscegenation law. The paradox Professor Marcosson's presents is that CLARENCE Thomas, a black man, is married to a white woman, but JUSTICE Thomas, as an originalist, would find

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nothing in the original understanding of the Fourteenth Amendment with which to invalidate the law. Chapter 2 continues the critique of originalist Fourteenth Amendment jurisprudence (focusing on school desegregation, voting rights, and affirmative action), while Chapter 3 takes up the Takings Clause of the Fifth Amendment and the search-and-seizure requirements of the Fourth Amendment. Chapter 4 examines federalism and Chapter 5 assesses the originalists'
performance in what Professor Marcosson insists "history will undoubtedly mark as the Rehnquist Court's signature case: BUSH v. GORE" (p. 6).

Chapters 6 and 7, which begin the second part of the book, find Professor Marcosson maintaining that even a nonpartisan application of originalist methodology would be an undesirable way to interpret the Constitution. After all, he insists, the Constitution was imbued with the "original sin" of being anti-democratic (by protecting slavery, for example).

Professor Marcosson concludes his short book by offering in Chapter 8 an alternative approach to constitutional decision-making. He labels his approach "legitimation." Under this approach, the Court should search for the "taint of the original sins permeating too much of our Constitution" and remove it (p. 145). In practical terms, of course, this means that the Court is charged with interpreting the Constitution to advance the agenda of the political left (for example, by recognizing as many "rights" as possible and by creating as many "protected classes" as possible).

I disagree with almost everything Professor Marcosson says in his book (Although I agree that slavery was terrible, as we all must). For example, as I explain at length in FIRST PRINCIPLES, it is incorrect to portray Justice Thomas and Justice Scalia as jurisprudential twins (although it is certainly the conventional wisdom to do so). They both often reach the same conclusions (so do other members of the Court), but they don't always do so. More importantly, their interpretive methods are often different. Justice Thomas is what I call a "liberal originalist" on civil rights questions (he appeals to the ideal of inherent equality at the heart of
the Declaration of Independence) and a "conservative originalist" on questions of civil liberties and federalism. Thus, he does what Robert Bork might have done had he been confirmed. He asks how the framers and ratifiers would have decided the question. He is, admittedly, inconsistent ACROSS these broad categories of constitutional law, but he is impressively consistent WITHIN the categories, for example, he employs an individualistic approach, rather than a group-based approach, to all civil rights questions-desegregation, voting rights, affirmative action. Justice Scalia, in contrast, is simply inconsistent. He does what Professor
Marcosson says he does: he first identifies a political result and then chooses an interpretive method by which he can try to justify the result.

Is it fair to criticize Justice Thomas for employing a different interpretive approach to civil rights questions than to civil liberties and federalism questions? Perhaps, however, we should remember what Ralph Waldo Emerson taught us many years ago, "A foolish consistency is the hob-goblin of little minds." Indeed, I think Justice Thomas should be commended for being forthright in his explanation about why he turns to the Declaration in civil rights cases. As then U. S. Court of Appeals Judge Thomas told Senator Orrin Hatch during his 1991 Supreme Court confirmation hearing, "my interest

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particularly in the area of natural rights was as a part-time political theorist at EEOC who was looking for a way to unify and to strengthen the whole effort to enforce our civil rights laws, as well as questions about people like my grandfather being denied opportunities. Those were important questions to me."

Of course it is possible to approach every area of constitutional law through a liberal originalist method, not just civil rights. I did precisely that in FIRST PRINCIPLES when I compared Justice Thomas's conservative originalist decisions in civil liberties and federalism cases to how those cases would be decided under a liberal originalist approach. I also applied liberal originalism in TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION. That leads to the final area of disagreement with Professor Marcosson that I'll take up in this review--the proper method by which the Constitution should be interpreted. Professor Marcosson is wrong, in my opinion, when he suggests that "genuine, unadulterated originalism is unbearable and unsustainable" (p. 170). A liberal originalist asks a judge to interpret the Constitution in light of the ends it was enacted to effectuate: the protection of the inalienable rights to life, liberty, and the pursuit of happiness. Those are the ends the Declaration of Independence proclaims the American regime
was founded to effectuate ("to secure these rights, governments are instituted among men"), and those are the ends to which the Constitution is dedicated. The founders certainly understood the connection between the Declaration and the Constitution. For example, James Wilson, who was second only to James Madison in terms of contributions to the framing of the Constitution, quoted the entire second paragraph of the Declaration to the Pennsylvania ratifying convention and then said, defending the proposed Constitution, "This is the broad basis on which our independence was placed; on the same certain and solid foundation this system is
erected."

These criticisms aside, Professor Marcosson has written a good book. Its tone is appropriate, its arguments are provocative, and its subject matter is significant.

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Copyright 2002 by the author, Scott D. Gerber.