December 14, 2007

Thomas's Originalism Is "Unsettling"

by PG

A couple weeks ago, D.C. Circuit Chief Judge Douglas Ginsburg visited Columbia at the invitation of the Federalist Society, to speak about Originalism in Constitutional Interpretation. I missed the beginning of his talk, but was in time for the Q&A. One student asked why Judge Ginsburg had signed onto an opinion of a colleague's, with which the student apparently disagreed and found inconsistent with the principles Ginsburg had espoused in his speech. Ginsburg reminded the questioner that the D.C. Circuit is an inferior court bound by the Supreme Court's precedent, such that judges are obligated to apply that precedent as best they can. He added that some of the Supreme Court justices, especially Scalia and Thomas, did try to bring originalism to the Court.

Following up on that question, I essentially asked Judge Ginsburg if he could explain Justice Thomas's "originalist" concurrence in in the Bong Hits 4 Jesus case, given that it drew on 19th century schoolmaster behavior to determine how the free speech aspect of the First Amendment applied to schoolchildren, without contemplating the result of such a standard for how freedom of religion applies to schoolchildren. (Schoolmasters and judges apparently didn't think the mandatory Protestant prayer and Bible reading were violations of schoolchildren's First Amendment rights back then, so if we applied the "what was good for kids in 1837 is good for 'em now" rule, the five Catholic justices' own offspring could be forced into religious observances with which they do not agree. Moreover, Thomas's concurrence in Rosenberger v. UVa makes clear that he does think the First Amendment's religion clauses apply to state institutions.)

Judge Ginsburg said he wouldn't address the specific opinion, but he did say that he found Justice Thomas's writings on the Establishment Clause to be "unsettling." As John C. Eastman has put it, Thomas takes an emperor-has-no-clothes attitude toward Establishment Clause precedent and the other justices' interpretation thereof. This creates instability and uncertainty for lower court judges like Ginsburg, who on the one hand may sympathize with Thomas's originalism, but on the other hand still must apply the precedent.

December 14, 2007 01:47 AM | TrackBack

But Thomas' solo concurrence is not precedential.

Posted by: Tom T. at December 18, 2007 12:09 AM
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