Justice Clarence Thomas and the Original Meaning of the Commerce Clause


At the Social Science Research Network, Claremont McKenna College professor Ralph A. Rossum has posted his fascinating University of Detroit Mercy Law Review article "Clarence Thomas's Originalist Understanding of the Interstate, Negative, and Indian Commerce Clauses." Here's a sample from the abstract:

During his twenty years on the Supreme Court, Justice Clarence Thomas has pursued an original understanding approach to constitutional interpretation. He has been unswayed by the claims of precedent — by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. Like too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent — focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means — hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the Justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood — to the original understanding of the Constitution.

The Commerce Clause is of course also central to the Supreme Court's looming decision on the constitutionality of the Patient Protection and Affordable Care Act. Whatever else that ruling holds in store, I think it's very safe to say we can expect Thomas to pen a powerful concurrence or dissent laying out in detail why the individual mandate violates the Constitution's original meaning.

For Reason's coverage of Thomas' originalist jurisprudence, go here.

(Thanks to The Originalism Blog for the link.)