justice thomas and original intent jurisprudence and newdow and van orden v. perry

While Justice Thomas' concurrence in Newdow emphasized his approach to the incorporation of the Establishment Clause (EC) (i.e., that it has been improperly applied to the states by the Supreme Court since the 1940s), his concurrence in Van Orden stresses an approach usually associated with him: original intent jurisprudence. This essay will probe briefly the latter concurrence, with emphasis on what he means by original intent. In addition, I think that Justice Thomas is the only Justice (apart possibly from Justice Scalia) who is starting to understand the way that religion functions for many people in 2005.

Concurrence in the Judgment

It is best to recall that when Thomas concurs in the judgment in Van Orden, thereby agreeing with the decision to allow the Ten Commandments monument to stand on the grounds of the Texas State Capitol, he agrees only with the result of the case and not the reasoning. Therefore, though he says "I join the Chief Justice's opinion in full," he is sharply circumscribing what that means. He only joins it "in full" in the very narrow issue of the importance of religion in American history. As to his method of interpretation and interpretive framework, Thomas will plow his own ground. Three points help us focus in on his approach.

Point 1: Our EC Jurisprudence is a Mess

He makes this point in the service of point 3 below, but it also stands on its own. Thomas' point is that the Court's EC decisions are so laced with inconsistency and false starts that they are guided by no "principle" (he learned that word from Justice Scalia, no doubt). For example, the most minimal religious symbols have been disallowed on establishment grounds (he cites Circuit Court opinions on 4-inch crucifixes and a cross in a remote part of the Mohave Desert). Then, on the other hand, obvious religious language that is "in our face" everyday, such as "In God we Trust," or "one nation under God," is allowed under the theory that it really isn't religious after all. Here he refers to Justice O'Connor's theory of religion. He says, "Telling either nonbelievers or believers that the words 'under God' have no meaning contradicts what they know to be true....Words like 'God' are not vulgarities for which the shock value diminishes with each successive utterance."

Point 2: Respecting Religion

This last quotation segues neatly into Thomas' second point--that even when the Court recognizes the religious nature of symbols, "that recognition fails to respect fully religious belief or disbelief." He says, rightly in my estimation, that such a brush off is satisfying neither to adherents or nonadherents of religion. The hypothetical "reasonable observer" fails to take into account the "honest and deeply felt offense" taken by the atheist at the government conduct. In addition, "For the adherent, this takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith." Though Thomas doesn't really say what religion means for people, and how this generation, both conservative and liberal, wants to bring its faith into the public square, he is leaning in the direction of understanding how religion functions for many people today. I hope he refines this in subsequent decisions.

Point 3: The Intent of the Founders

The way to get beyond the confusion caused by the Court's EC jurisprudence and to respect religion properly is to go right to the original or historical meaning of the phrase "Congress shall make no law respecting an establishment of religion." Like a thorough house painter, then, Thomas would scrape away all the layers of precedent that overlie the EC phrase and put on a new coat that perfectly fuses with the texture of the underlying surface. But even this analogy would be somewhat problematic to Justice Thomas, for it would suggest that what he would be doing is just scraping away precedent to lay on more precedent, though he sees himself as letting the true and original meaning speak for itself.

Two points follow from this approach. First, Thomas has to show what this original EC meaning was. He argues that in 1789 this phrase would have prohibited Congress from coercing people to pay taxes to an established religion or to force people to attend or in other way support a particular religion. In so arguing, he loves Scalia's sentence from his 1992 Lee dissent: "The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty." Though a good argument can be made for this theory, Thomas has to make it at the expense of leaving off a significant point (which Justice Stevens kindly points out in one of his opinions): that Congress, in all likelihood, only had Christian Protestant denominations in mind when it approved the 1st Amendment, and not Buddhists, Muslims and many more religions that have come to our shores since 1789.

Second, there is something both deeply satisfying and equally unsettling about "original intent" jurisprudence. On the one hand, it fuels my historical inclinations and encourages historical research--which I think is the hallmark of good thinking. But the quest for original intent is philosophically problematic because it assumes that you can actually express that original intent purely (and that there WAS such a thing as original intent, rather than original dissonance), without beginning another "layer" of precedent that will itself have to be swept away as soon as it is uttered. I will have more to say about this approach in another essay.

Conclusion

Thus, Justice Thomas has both a germ of insight into religion in our day but has painted himself into a pretty tight jurisprudential corner. The germ of insight is that religion is a living and transformative force that this generation does not want to leave aside as it enters into the public spaces of our land. The tight corner is his quixotic search for a unitary original meaning. I have a feeling that his search will, in Macbeth's words, "o'er leaps itself/ And falls on th' other" (1.7.27-28--the imagery is taken from mounting a horse. If you run at it with too much energy, you just plain miss the saddle. The Three Stooges would also have sufficed, I admit, to make the point). In other words, in trying to be so historically "pure," he will run into loads of other problems--the two leading ones are original dissonance as well as the notion of a "living constitution", the theory that the constitution's meaning ought not to be confined to whatever its putative original meaning was. But I see I have already touched other nerves, so I must close now. Thomas' historical purity, in my mind, is ultimately illusory.

1161