Justice Thomas and the Oft-Forgotten Virtue of Prudence

John C. Eastman

December 1, 1998

Article IV, Section 4 of the United States Constitution provides that “The United States shall guarantee to every State in this Union a Republican Form of Government.” As the phrase “Republican Form of Government” was understood then and is still understood now, the guarantee required that the governments in the several states be representative in nature and, perhaps more importantly, that they be based on the consent of the governed.

Yet the very document in which this guarantee is codified contains three clauses concerning slavery that are distinctly unrepublican in nature: The Three-Fifths Clause, Article I, Section 2 (providing that representatives and direct taxes shall be apportioned among the states based on population, “which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons”); the Importation Clause, Article I, Section 9 (“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight”); and the Fugitive Slave Clause, Article IV, Section 2 (“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged
from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due”).

In a recent book entitled Vindicating the Founders, Professor Thomas G. West of the University of Dallas explains this apparent contradiction at the heart of our Constitution: The three slave clauses were a prudent compromise with the principles the founders were otherwise making into law, borne of the realization that without the compromise, no union would exist and, without the union, the great though incomplete strides toward freedom that a union was sure to make possible would also not exist.

Prudence, of course, was long ago described by Aristotle as one of the principal intellectual virtues — perhaps the intellectual virtue — and the Founders certainly exhibited a high degree of this virtue when making this compromise with slavery, for however fundamentally inconsistent slavery was with their principles, the virtuous course, the prudent course, the practically wise course, was to establish the conditions that would, as President Lincoln would later describe, put slavery in the course of ultimate extinction.

Now what does all this old history have to do with Justice Thomas? Well, I believe that members of the Supreme Court are no less political beings than were our Founders, not in the base sense of “political” often described by contemporary sociologists, but in the grander sense, in the sense that judging, at least at the Supreme Court level, is often as much the art of divining the possible as it is of getting the law right.

This is especially true for someone who, like Justice Thomas, is absolutely devoted to the original meaning of the Constitution — both its letter and its spirit — but who serves on the Court at a time when for more than a half century that meaning has been thrust aside like so much paper, all but forgotten and, when remembered, often deliberately ignored. To dissent in every case in which an unconstitutional, though long established, exercise of Congressional power was upheld by the Court would cause any justice to become quickly marginalized, undercutting the very possibility of persuasion that might otherwise take root over time. Thus, one such as Justice Thomas must ever consider that which is possible, distinguishing between that which he might accomplish today and that which he must table for another day, so as to keep open the very possibility of revisiting the issue when the climate is more favorable, when the groundwork for a full restoration has been fully laid.

Thus it is, for example, that Justice Thomas could author the Court’s 1994 opinion in Oregon Waste Systems, Inc. v. Department of Environmental Quality of State of Oregon, striking down Oregon’s landfill fee on out-of-state waste as a violation of the dormant Commerce Clause, even though the Justice had elsewhere joined opinions claiming that the dormant Commerce Clause was an illegitimate exercise of power by the Court. The Court has been exercising its supposed authority under the “dormant” Commerce Clause for a century and a half, of course, so any critique of that long body of jurisprudence must be made gingerly if it is to remain credible. That was especially true in the Oregon Waste case, because the Court had faced a nearly identical issue less than two decades before, in the 1978 case of Philadelphia v. New Jersey, and the groundwork had not been laid in the interim on which to base a successful, or even credible, challenge to that opinion. Th
e prudent course, therefore, was to accept the status quo for the time being, leaving the broader critique for another day.

That day was not long in coming. Just three years later, in the case of Camps Owatanna v. Harrison, Maine, the Court expanded the dormant Commerce Clause to prevent States from giving tax exemptions to charities that served in-state residents without giving the same exemptions to charities serving out-of-state residents. The Court’s reach into unchartered territory deprived it of the “authority” of the status quo position, however, and Justice Thomas took the occasion not only to oppose the further expansion, but to lay the groundwork for a revisition of the initial doctrinal deviation from the constitutional norm. While his opinion was only a dissent, it challenged the dormant Commerce Clause in a way that was credible, and that the Court will undoubtedly have to come to grips with in a future dormant Commerce Clause case.

But, one may ask, given the facially inconsistent positions between Justice Thomas’s opinions in Oregon Waste and Camps Owatanna, how are we to assess which represents his principled position and which his prudent compromise?

Justice Thomas has, in another opinion, provided us an answer, and it is the same answer a United States Senator from an earlier generation provided when, confronted with the slavery question during debate over the admission of Missouri, he had to ascertain whether the Constitution’s Republican Guarantee Clause or its three slave clauses were a compromise with principle. In answering that question, Massachusetts Senator Fuller looked to the self-evident truth cited in the Declaration of Independence that “all men are created equal and noted that “since it cannot be denied that slaves are men, it follows that they are in a purely republican government born free, and are entitled to liberty and the pursuit of happiness.”

And in answering the question whether the Constitution’s Equal Protection Clause permitted race-based preferences, Justice Thomas wrote in his concurring opinion in Adarand Constructors, Inc. v. Pena: “There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution.” By citing to the Declaration of Independence, and in particular the Declaration’s self-evident truth that “all men are created equal,” Justice Thomas left no doubt that the self-evident truths articulated in the Declaration were the source of that principle. So too with his dormant Commerce Clause opinions, for the same principle that supports inherent equality also informs us that the only legitimate government is one based on consent — a principle that is undermined when the Court ignores the limitations on the grants of power contained in the Constitution and ta
kes for itself power not granted, not consented to, by those who ratified the Constitution and by those who continue to be governed by it.

So applaud when Justice Thomas is able to further his enterprise in restoring original principle to the Court’s jurisprudence, but recognize that in an imperfect world, sometimes even one as devoted to principle as is Justice Thomas must exercise prudence so that, at the appropriate time, the Court’s deviations from original principle may, like slavery before it, be put in the course of ultimate extinction. For therein lies the true path of virtue.

Dr. Eastman is a practicing attorney with the national law firm of Kirkland & Ellis. He was a law clerk with Justice Clarence Thomas during the Supreme Court’s October 1996 term.