(By Gregory E. Maggs, Professor at George Washington University and Former Clerk to Justice Thomas)
This essay addresses a basic question about Justice Clarence Thomas’s originalist jurisprudence. When Justice Thomas looks for the original meaning of the Constitution, does he seek (a) the meaning intended by the Framers at the Constitutional Convention in Philadelphia (“original intent”), (b) the meaning as understood by the delegates to the thirteen state ratifying conventions (“original understanding”), (c) the objective meaning of the Constitution’s text at the time of its adoption (“objective meaning”), or (d) some other type of original meaning? The answer to this question may be helpful in predicting the outcome of constitutional issues that might come before the Supreme Court and benefit litigants deciding what arguments to make to the Court. The answer also may contribute to scholarly assessments of the theory behind Justice Thomas’s decisions.
My research leads me to conclude that the answer to date is that Justice Thomas, unlike certain other originalists, has not shown a notable preference for any of the first three kinds of original meanings listed above. Instead, Thomas has developed his own brand of originalist jurisprudence. He looks for what might be called the “general original meaning.” When Thomas decides constitutional issues, what is important to him is an agreement among multiple sources of evidence of the original meaning. Rather than focusing on whether historic documents might show the original intent of the Framers, the original understanding of the ratifiers, or the original objective meaning, Justice Thomas looks for a general meaning shown in common by all relevant sources.
In advancing this thesis, I must begin by making one important disclaimer. Although I clerked for Justice Thomas in the 1991 October Term of the Supreme Court and have had regular contact with him since, we have not discussed the subject of this essay. I claim no inside knowledge, and I am revealing no confidential information. Instead, in this essay, I have sought to discern which original meaning of the Constitution matters to Justice Thomas solely from his written opinions.