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Editorial Review Product Description Clarence Thomas is one of the most vilified public figures of our day.To date, however, his legal philosophy has received only cursorytreatment.First Principles provides a portrait of Thomasbased not on the justice's caricatured reputation, but on his judicialopinions and votes, his scholarly writings, and his public speeches.The paperback edition includes a provocative new Afterword by theauthor bringing the book up to date by assessing Justice Thomas'sperformance, and the reaction to his decisions, during the last fiveyears. ... Read more Customer Reviews (8)
Finally a treatment without the prism of race
Gerber bravely went where angels fear to tread, namely to view Justice Thomas as an Associate Justice and as an American rather than the hyphenated American Associate Justice. Thomas's views demand we consider the Founders thoughts, in much the same way Lincoln requested we do at Coopers Unionthat is to 'never supplant their logic when we know they understood the question better than we do.'
The vilification of Justice Thomas puzzles those who have read his opinions. To decry a Justice observing the contemplations of the Founding generation who created the American formula of, Liberty granting power to replace the previous and arbitrary power allows Liberty, seems oddly miscast. Those pundits who offer the idea of a color blind society, yet mock Thomas seem unaware of the paradox they create.As a society we are all aware of the want of historical background we have, and in no area are we lacking more than in Founding. Thomas's insistence that there exists areas that the National government has no power, reflects the Madisonian stance, as articulated in his Ninth Amendment beliefs; beliefs Thomas obviously comprehends.
Anyone wishing to escape the mandates of partisan politics would serve him, or herself well by reading this book, and then venturing forth and read some of Thomas's opinions, opinions which are well reasoned, and as devout to our American heritage as is possible.
Insightful, but limited in views on civil liberties
I had one primary motivation for reading an arguably dated book: with the addition of Roberts and Alito to the Court, the Court will certainly transform itself from being the most effective institution, besides our military, in protecting the reserved rights of "We the People" to a court that will most certainly expand government power as the Conservatives on the court gain control.J. Thomas, who has written many a provocative dissent, will now become a prolific writer of opinions that will grant the government sweeping powers as our individual rights are stripped away.I wanted to better understand what to expect out of Thomas as his opinions now become binding law.
Gerber's book is considered the most fair, unbiased, and most accurate analysis of Thomas' jurisprudence though limited to the first five years of his tenure, though it also contains a short afterword that catches up on Thomas through 2000.What is most intriguing about Thomas is that Thomas claims to read and interpret our radically liberal constitution within the context of the even more radically, and revolutionary Declaration of Independence, unlike Scalia who claims to read only the Constitution from a textual perspective.Rather than yielding a solid libertarian view a la' Randy Barnett so well-espoused in Barnett's "The Lost Constitution", Thomas seems to constantly rule opposite of the original meaning or even original intent of those two documents if they deny a conservative political objective.So what gives?
Gerber not only does a great job of providing a rhetoric-free analysis of Thomas's view, he also does a fine job of comparing those views to competing views and fairly crucifying Thomas's media critics who hate the rulings without any understanding of Thomas' arguments.As fair as Gerber is in analyzing Thomas' opinions against his judicial adversaries, Gerber also does a fascinating quantitative analysis to empirically expose whether Thomas is honestly deciding cases or is driven by conservative political objectives - the results of this research contained within the Appendices is alone worth owning this book.
Some of Gerber's findings:
Gerber publishes outtakes from a Thomas 1987 speech to the Heritage Foundation where Thomas claims to support the constitutional principle of the"primacy of the individual, and establishes our inherent equality as a God-given right."Thomas ends this subject in his speech arguing that Conservatives should embrace this concept rather than have this principle continue to be conservatism's "Achilles' heel".Fine rhetoric indeed, Gerber then goes on to show how in ruling after ruling, Thomas rejects his own principles to vote firmly for sweeping government power that deprives the individual of their rights with respect to civil liberties as Thomas ignores the fact that we reserved our rights and tries to limit those rights by trying to prove they are all numerated in the Constitution, and narrowly at that.
Again Gerber quotes Thomas defending the original meaning of the 9th amendment that would "explicitly deny to the national government certain powers over various subjects would imply".And throughout the book Gerber then exposes Thomas as he tries to narrowly interpret the other Bill of Rights amendments to show preference to government power rather than use the Constitution to interpret the powers delegated to the government to, as Jefferson said in the D of I, "secure the blessings of liberty", e.g., Thomas voting with a 5-4 majority approving ofgovernment funding of religious activity in Rosenberger v. the U. of VA. (1995); an unprecedented ruling that directly opposses the establishment clause and our equal protection rights.
Not that Thomas is always on theside of non-delegated gov't power.Gerber does a very respectful and insightful analysis of Thomas views on civil rights in regards to affirmative action and Thomas' fierce defense of free speech regarding political speech, like in McIntyre v. Ohio Elections Commission where Thomas did support the original meaning of the Constitution by limiting government power to explicitly stated delegation of powers while broadly interpreting the people's and the press' right to speech.
While the chapter on Thomas' views on Federalism, where Thomas is an active proponent of allowing states non-explicit powers to deny Americans their constitutional rights is interesting, Gerber doesn't go far enough, like Barnett has done, in analyzingwhether any founding framer believed in the principle that the states could deny rights to "we the people", with the "people" being narrowly defined at that time.
Many constitutional law bloggers have easily exposed Scalia as an absolute hypocrite regarding his defense of original meaning when he often, and lately almost constantly, ignores that concept when needed to support a conservative political goal. Thomas's opinions require a much more thorough examination to expose his rationale for his rulings; Gerber for the most part is up to the task.If you are a Thomas fan, you'll get plenty of support for your position, if you are aghast at his findings, you will understand how far Thomas must twist reason to support his conservative ideology, and if you are like me, a person who thinks Thomas has unlimited potential but is also aghast at his rulings, you'll find evidence that maybe with time Thomas will begin to defend our reserved rights as time develops his jurisprudence, unfortunately the two new members will most likely have no positive influence on Thomas, providing support for narrow rulings with twisted logic to claim protection of rights while ruling in a manner that destroys those very rights.
An intriguing examination of Justice Thomas with some flaws
I applaud Gerber for avoiding yet another partisan attack upon (or defense of) Justice Thomas. Too often scholars, or politicians, respond to justices, and Thomas in particular, with partisan attack divorced from any real consideration of the substance of the justice's view. Gerber looks at Thomas's opinions in cases from three areas: civil rights, civil liberties, and federalism.
Gerber's conclusion is that Thomas is just as result oriented as any other justice, he reads his own preferences into the text he is interpreting in the same manner that "liberal activists" do. Unfortunately, Gerber at times glosses over this fact because of his pet theory of "liberal originalism" that sees all constitutional principles as derivative of the Declaration of Independence (a theory dubious on its own terms). The most obvious gloss comes in affirmative action cases. Thomas has insisted upon a colorblind interpretation of the Equal Protection Clause, but he fails to give any originalist defense of this position. Instead, he uses moral arguments with a single citation to the declaration. Gerber spins from this a position that Thomas believes in his theory of interpretation, at least here since he admits that Thomas abandons this idea in other areas such as religion. But, neither Thomas nor Gerber clearly state what importance the declaration could have on the meaning of the 14th Amendment, enacted nearly a century later. In fact, the history of the 14th Amendment demonstrates a pervasive use of benign racial classifications similar to affirmative action programs, leading many to conclude that, as originally understood, affirmative action programs are constitutional. Gerber swipes aside these criticisms, stating that Thomas's affirmative action opinions rely upon moral arguments and not history. But this ignores the fact that Thomas claims to be an originalist who relies upon the intent and practice of the enactors of a provision. We should hold Thomas up to the standards he claims to live by. Another example, of rather recent development which explains why Gerber's book doesn't include it, is takings. In the recent New London decision, Thomas offered a powerful originalist critique of the broad majority opinion of the public use requirement. He uses intent, original understanding, and contemporary state practice. Yet, he joined in, and continues to support, Scalia's opinion in Lucas admitting that history failed to support regulatory takings, and describing the same history used in New London as irrelevant. This is a glaring inconsistency necessitated by the fact that history fails to support Thomas's belief in regulatory takings so he abandons these inconvenient facts. Thus, we see that originalism fails to constrain Thomas's behavior in the way he claims it does.
Another annoying thing is that Gerber seems to find it necessary to vocalize his opposition to Thomas's opinion, almost as if he is afraid of being labeled a Thomas-defender. I think this is unnecessary and he should have simply presented Thomas's thoughts without his subjective opinion as to the correctness of those positions. All told, I think Gerber's book is a fine one, presenting Thomas's opinions and thoughts themselves. In the end, we see that Thomas is just as likely to join in activist policy-making as any other justice. This should hardly be surprising and we should encourage it because it adds another important voice to constitutional issues, particularly in affirmative action cases where he is the only justices to experience it first hand. We should encourage this diversity of opinion while removing the illegitimate claim that it is the requirement of history rather than Thomas's personal policy preference.
An exceptional book
This is an exceptional book. What Gerber has done is to avoid the political panderings of both the left and right wing and given us an objective, unbiased consideration of Justice Thomas'opinions. What a pleasure to read a book based in data not political philosophy. Plus the book is very well written. Kudos to Mr Gerber
a remarkably intelligent-and courageous-study.
While it is true to say that Clarence Thomas is one of the most vilified men to sit on the Supreme Court, it must also besaid that he has also often suffered from having the wrong kind of defenders. With the lonely exceptionof Senator John Danforth, practically none of Thomases defenders has takenthe time to understand his thought or character. Finally, an inteeligentbook has been written about Thomas, by someone who comes neither to glorifyor condemn Clarence Thomas, but to UNDERSTAND him. Scot Gerber is one ofthe fastest rising stars in American constitutional thought.In this finestudy, he analyzes Thomases opinions, and concludes that Thomas is notsimplya tail to Antonin Scalias intellectual kite. Instead, ClarenceThomas ins a thoughtful, highly principled jurist, with a much deeperundrstanding of our Constitution and its foundations than many of hiscolleagues on the Court,(Andthe entire Democratic membership of theSenate Judiciary commitee, for that matter.)While Gerber is critical ofmany of Thomas' opinions,he is never crudely dismissive. Instead, he showsjust how scholarly and intelligent thisvery misunderstood justice is.Whydo I call this book 'courageous'.For one reason, and one reason alone. As Ihave already said, Scott Gerber is a rising star of constitutionaltheory.He is also a Liberal, in the classical, libertarian sense. However,in defending Thomas, he has risked prevokingthe wrath of some veryinfluential people. He has several hair -raising anecdotes in this bookabout how reputable law reviews have refused to print anything favorable toClarence Thomas, and it is indeed doubtful that this fine book will meetwith the respect it deserves.Even now, it has only been reviewed in'conservative' magazines, while such organs of "liberalism" asThe New Republic ,The New York Review of Books,and The New York Times havegreeted it with silence.One can only hope that Americas leading law reviewswill not follow in their footsteps,and instead showthe same maturity andcourage as Scott Gerber.Both he and Justice Thomas deserve respect.
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