In this week’s issue, venturing a thumbnail sketch of Justice Thomas’s brand of constitutional interpretation, I noted a significant difference between Justice Thomas and other conservative “originalists”: Unlike many “first-generation” originalists, Thomas expressly interprets the Constitution as embodying the natural law principles of the Declaration of Independence.
And, perhaps not coincidentally, Justice Thomas is much less inclined to temper his originalist approach with considerations of stare decisis. That is, once Justice Thomas has decided how a constitutional provision should be interpreted and applied in a given case, he is much less likely than others to allow that interpretation be superseded by precedents pointing in the other direction.
Justice Thomas’s unflinching willingness to overturn precedent, and his view of the Constitution as reflecting the Declaration’s promise of liberty, makes Thomas the favorite justice of libertarians—including Randy Barnett, the libertarian legal scholar who has become a leading voice of “judicial engagement,” a rejection of “judicial restraint.”
Barnett stressed these themes in his contribution to National Review‘s recent symposium on Thomas:
As it happens, Barnett recently published a new book on these themes. In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, Barnett urges conservatives to embrace a more libertarian view of the Constitution, and to demand that judges vindicate this constitutionalism more energetically.
On Tuesday, I’ll have the pleasure of discussing these themes with Professor Barnett, at a free luncheon event hosted by the Hoover Institution in Washington, D.C. If you’re in Washington and enjoy spending your lunches discussing constitutional law, then you’re in luck—RSVP here.
Adam J. White is a research fellow at the Hoover Institution. His reflection on Justice Thomas’s mind and courage appears in this week’s issue.
