Ralph A. Rossum (author of the definitive legal history of California v. Cabazon Band) has posted his paper, “Clarence Thomas’s Originalist Understanding of the Interstate, Negative, and Indian Commerce Clauses,” on SSRN. It is available in the University of Detroit Mercy Law Review. (Hat tip)
Here is the abstract:
During his twenty years on the Supreme Court, Justice Clarence Thomas has pursued an original understanding approach to constitutional interpretation. He has been unswayed by the claims of precedent — by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. Like too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent — focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means — hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the Justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood — to the original understanding of the Constitution.
In what follows, Section I describes Thomas’s originalism and contrasts it with Antonin Scalia’s different kind of originalism. Section II explores Thomas’s originalist understanding of the limits of Congress’s power under the Interstate Commerce Clause. Section III focuses on Thomas’s rejection of the Court’s claim of power to invalidate state laws burdening interstate commerce under the negative Commerce Clause on originalist grounds. Section IV addresses Thomas’s rejection of the view that the Indian Commerce Clause gives the Congress plenary power in Indian country and his call in United States v. Lara for the Court to “examine more critically our tribal sovereignty case law.” Section V concludes.
I think Prof. Rossum is spot on when it comes to the Indian Commerce Clause, especially in terms of his excellent description of how the First Congress passed a whole series of statutes involving Indian affairs culminating in the first Trade and Intercourse Act.