Taking Justice Thomas Seriously
Green Bag, Vol. 2, p. 425, Summer 1999
10 Pages Posted: 2 Jun 2006
Substantive Review of Scott Gerber's book, First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999). This review praises Gerber's recognition that Justice Thomas has articulated a consistent and thoughtful original theory view of the Constitution, distinct from the original practice, most positivist view of constitutional interpretation advanced by Justice Antonin Scalia and the late Chief Justice William Rehnquist. It also applauds the effort to take seriously Justice Thomas's jurisprudence, even while it takes Gerber to task for misunderstanding at times the full depth of that jurisprudence. Most notably, the article challenges Gerber's critique of Justice Thomas's Establishment Clause jurisprudence as anachronistic, adopting as it does a strict separationist view of the Establishment Clause that is simply incompatible with the historical practice at the time the clause was adopted.
Keywords: Justice Clarence Thomas, Scott Gerber, jurisprudence, Supreme Court, Establishment Clause, originalism
JEL Classification: N40,K40,K10,K19,K30,K39,J71,J78,H10,H11
Suggested Citation: Suggested Citation