Obergefell II: The Alt-Histories of Clarence Thomas

Right, not quite finished with Obergefell v Hodges just yet. I've made what points I think are worth making about Chief Justice Roberts's dissent, with one exception. His conclusion is unusually petty and mean-spirited for Roberts, who, while I often deplore his results and reasoning, generally tries to keep a tone that while more casual than most lawyers, is respectful. So his conclusion is a surprise:

"If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Honestly, that's a bit beneath him, in my opinion.

Justice Thomas's dissent, however, does not surprise, either in its rhetorical excess or in, what I called in an online discussion, its laughable history. I was quite properly asked to specify the latter, and, in writing that up, thought I might share a slightly revised and extended version of my remarks here.

Quickly, though, the rhetorical excess. Thomas attacks Justice Kennedy's majority opinion for its reliance on the notion of equal dignity under the law. He writes:

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

This is, quite simply, insane. Slaves were, as a matter of law, deprived of their dignity. Read Dred Scott v. Sandford, 60 US 393 (1857):

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Legally, they were denied the status of people, the dignitas afforded whites. Thomas is, quite simply, wrong. Moreover, human dignity has increasingly featured in constitutional analysis from Alexander Hamilton through to the present, gathering momentum especially in the 1940s, when we confronted a foreign system based on denying dignity. Justice Frank Murphy's prescient dissent in Korematsu v. United States (1944) indicted the internment on the very ground that to adopt the Government's rationale "is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow."

Brown v. Bd of Education (1954), generally considered one of the great achievements of the Supreme Court, expressly turned on dignitary concerns; as to "children in grade and high schools, the unanimous Court ruled, "[t]o separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (For more, see Richard Kluger's Simple Justice (1979)).

Clarence Thomas, in short, is not a reliable exponent of history.

This applies even more to his analysis of the Fourteenth Amendment's history. Again, a quotation:

In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.”

If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid. (p. 6)
. . . .
Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. (p. 7)

A very short explanation as to why Thomas's history is laughable goes something like this: Thomas equates "liberty" in the Fifth Amendment with that as described in Blackstone's Commentaries. He then equates the usage of liberty in the 14th Amendment with that as described by Blackstone, on the theory that parallelism should be assumed. He does this by relying on dissenting sources on the meaning of the 14th Amendment, while ignoring, quite literally, the entire jurisprudence of the 14th Amendment from its passage to date. From Chicago, Burlington & Quincy Railroad v. Chicago (1897) through Gitlow v. New York (1920), and New York Times v. Sullivan (1964), the liberty protected in the Amendment was never understood that way. Cases in which parental control of their children's education (such as Pierce v. Society of Sisters (1925) or Meyer v. Nebraska, in no way involve Thomas's crabbed definition of liberty. Even in the great debate over whether and to what extent the 14th Amendment incorporates the Bill of Rights against the States, waged in Palko v. Connecticut (1937) or in Adamson v. California (1947), neither side argued for the Thomas formulation or anything remotely like it. In sum, the Amendment has simply never been understood the way Thomas asserts it should be. (See generally Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights; my old professor Charles L. Black's A New Birth of Freedom: Human Rights, Named and Unnamed is, while less heavy on history, quite helpful, and my own First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004) addresses the incorporation controversy and the history of the Fourteenth Amendment in brief. Justices Black and Douglas--who participated in many of the relevant cases on dignity as well as incorporation each wrote about the subject, Black in A Constitutional Faith, Douglas in The Right of the People. Some of the earlier important cases are collected in The Mind and Faith of Mr. Justice Holmes and some philosophical underpinnings in his Collected Legal Papers).

He's long been against the use of "due process" to derive substantive rights. Fair enough; I think he's right there, though that ship sailed in 1873. That said, the Privileges and Immunities Clause creates a different source for an undefined set of rights, which Thomas would give no effect. (So here he's striking out constitutional text, while in "liberty" he constricts the text to a meaning that it has never had in the 14th Amendment's jurisprudence.)

That's why it's laughable history--it's like a Harry Turtledove novel,an alternative history of the 14th Amendment that never was.