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The Originalist By: Jamie Glazov
FrontPageMagazine.com | Tuesday, February 20, 2007

Frontpage Interview’s guest today is Henry Mark Holzer, a constitutional and appellate lawyer, and professor emeritus at Brooklyn Law School. A regular contributor to Front Page Magazine, Professor Holzer’s books include “Aid and Comfort”: Jane Fonda in North Vietnam and Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service (each co-authored with Erika Holzer). He is the author of the new book The Supreme Court Opinions of Justice Clarence Thomas, which has just come out in a new updated edition that includes all of Thomas’s opinions for the last term, ending June 2006.  This edition, then, is now the current definitive volume on all of Thomas’s opinions for the entire fifteen years he has been on the Court.

Mr. Holzer’s website is henrymarkholzer.com and he can be contacted at hank@henrymarkholzer.com.

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FP: Henry Mark Holzer, welcome back to Frontpage Magazine.


Holzer: Good to be back Jamie.


FP: In your book, you emphasize that Justice Thomas, more than any other of his colleagues, is an “Originalist.”  Can you explain to our readers what exactly that means?


Holzer: Paraphrasing former Attorney General Ed Meese, Originalism is a method of interpreting the Constitution on the basis of what any given provision meant to the people who wrote it, whether the original Bill of Rights, the later Fourteenth Amendment, or for that matter any amendment since.  Meese rightly observed that “A constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense.”  It’s my emphasis on the word “judges,” meaning that they aren’t the ones who wrote what they’re now interpreting.


FP: So if we accept that Justice Thomas is an “Originalist,” which of his 300-plus opinions best exemplify that interpretive philosophy?

Holzer: That’s both a hard and an easy question.  Hard because so many of his opinions do, and choosing among them is necessarily going to be based on one’s own constitutional values and interests.  Easy, because various categories of his opinions stand out among all the rest.

FP: Do we see Originalist principles at work, for example, in Justice Thomas’s First Amendment jurisprudence?

Holzer: Absolutely.  For example, so-called commercial speech.    Pre-Thomas, In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., the Supreme Court ruled that the Commonwealth’s blanket ban on prescription drug advertising violated the First Amendment.  If advertising was truthful and not misleading, it was protected speech, a principle that lasted for some two decades.  So far, so good.

But then, in the mid-nineties, the Court reviewed two Rhode Island statutes that regulated the advertising of alcoholic beverages. 

One of the laws, with a minor exception, prohibited “advertising in any manner whatsoever” the price of any alcoholic beverage offered for sale in the state. 

The other prohibited entirely all print publication and broadcast of any advertisement that referred to “the price of any alcohol beverages.”

When the case involving the two statutes reached the Supreme Court of the United States in 44 Liquormart, Inc. v. Rhode Island, in reliance on several post-Virginia Pharmacy Board cases (especially Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of N.Y.) the Court ruled each Rhode Island statute unconstitutional because they were more extensive than necessary to achieve the state’s purported interest of fostering temperance. 

Even though the statutes were ruled unconstitutional, the dangerous implication of the majority opinion was that if the statutes were not “more extensive,” if they could be considered “reasonable,” the prohibitions probably would have survived constitutional scrutiny and the prohibition on speech upheld.

Justice Thomas didn’t join the majority, but instead wrote a concurring opinion.  But not because he disagreed with the result of unconstitutionality reached by the majority, but because in principle he had serious reservations about speech being valued hierarchically—with, paraphrasing George Orwell, “some speech being more important than other speech.”

Thomas noted that “[t]he Court has at times appeared to assume that ‘commercial’ speech could be censored in a variety of ways for any of a variety of reasons because, as was said without clear rationale in some post-Virginia Bd. of Pharmacy cases [especially Central Hudson], such speech was in a ‘subordinate position in the scale of First Amendment values . . . .’ * * * I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.  Indeed, some historical materials suggest to the contrary.”  Note Justice Thomas’s reference to “historical”—meaning the understanding of the Founders who wrote the First Amendment.

FP: Many critics of Justice Thomas, especially those on the Left, contend that with regard to Eighth Amendment “prisoners’ rights” jurisprudence, Justice Thomas has gone overboard with his Originalist interpretation.  What’s your take on that?

Holzer: Nothing could be further form the truth.  Compared with the liberties the Court’s liberals have taken with the Cruel and Unusual Punishments Clause, it’s insulting to accuse Justice Thomas of going overboard.  On more than one occasion he has exposed the indefensibility of the majority’s prisoners’ rights jurisprudence.

FP: Can you give us some examples?   

Holzer: The Estelle-Hudson axis of cases is a perfect example of imperfect decision-making by the Court.

To understand just how wrong the Court has been, and how correct Justice Thomas has been, regarding prisoners’ rights, it’s necessary first to look at some constitutional history pertaining to Cruel and Unusual Punishments.

Although the Eighth Amendment became effective in 1791, it wasn’t until 1910 in the case of Weems v. United States that the Supreme Court looked closely at the amendment’s English history, the rationale for its inclusion in our Bill of Rights, the Court’s earlier interpretation of the provision, and how state courts had interpreted similar prohibitions.  And not until 1976, sixty-six years after Weems, did the Supreme Court measure a prisoner’s alleged injuries against the yardstick of the Eighth Amendment.

In the case of Estelle v. Gamble, a Texas prisoner had hurt his back during a work assignment.  Dissatisfied with the medical treatment he received, Gamble sued the warden and other prison officials under 42 United States Code, Section 1983 (the early Civil Rights Act), for alleged violation of his civil rights, to wit: his Eighth Amendment right to be free of “cruel and unusual punishments.”   The case then established “tests” by which prisoners’ rights complaints could be evaluated by the federal courts.

Against Estelle v. Gamble’s background, and during Justice Thomas’s first term, the Court decided the case of Hudson v. McMillian.  

As the result of a beating by guards, “Hudson suffered minor bruises and swelling of his face, mouth, and lip.  Blows also loosened Hudson’s teeth and cracked his partial dental plate, rendering it unusable for several months.”  Predictably, the prisoner sued for violation of his Eighth Amendment-guaranteed civil right to be free of “cruel and unusual punishments.”

In her opening paragraph for the Court’s 7-2 majority, Justice Sandra Day O’Connor wrote that “[t]his case requires us to decide whether the use of excessive physical force against a prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury.  We answer that question in the affirmative.”  

FP: Just a second. Wasn’t Justice O’Connor pretty far away from the Weems decision where you said the Court had merely decided that the Cruel and Unusual Punishments Clause was alive and well in the Constitution, but there was nothing about “prisoners’ rights”?  Wasn’t she even a long way from what you said about the Estelle decision, where at least there seemed to be some kind tests that, I suppose, required some kind of injury?

Holzer: You’re absolutely right, and that’s why in his dissent Justice Thomas flat-out disagreed with the majority.  He said that “[i]n my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious [an actionable civil wrong], it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment.”

FP: Why not?

Holzer: Well, Thomas explained himself very clearly.  First, he wrote that “[f]or generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner.”  Indeed, Thomas reminded the majority, not until the Estelle case in 1976 had the Supreme Court ever applied the Eighth Amendment “to a prisoner’s complaint for a deprivation suffered in prison.”  Never, from 1791 to 1976.  Do the math: 185 years!

Next, Thomas explained that when the Court “cut the Eighth Amendment loose from its historical moorings and applied it to a broad range of prison deprivations,” the quid pro quo was creation of the new test: official culpability (subjective) and serious injury (objective) had to be present.

He went on to underscore the Hudson majority’s abandonment of the “objective” prong of the test, writing that “this approach [as] an unwarranted and unfortunate break with our Eighth Amendment jurisprudence.” 

FP: So, it appears that Justice Thomas’s Hudson dissent tells us a lot more about his constitutional jurisprudence than just that having to with the Cruel and Unusual Punishments Clause, right?

Holzer: Very much so, it tells us at least three things about Thomas’s legal philosophy in general and about his Eighth Amendment jurisprudence in particular. 

First, in general, rightly decided precedents and historical commentaries are the bedrock upon which subsequent decisions should be built. 

Second, more particularly, explicit criteria, both subjective and objective, for assessing Eighth Amendment deprivation claims are important and should not be lightly discarded, let alone less than two decades after they were first formulated. 

Third, abandonment of the objective component—“serious injury”— test in prisoner cases, substituting instead the empty liberal bromide “contemporary standards of decency,” opens prison doors wide to baseless inmate complaints.  Inevitably, what I call “decision-by-slogan” can only embolden the incarcerated population, cause prison wardens and guards to endanger themselves by altering their handling of prisoners, and clutter the courts with endless claims of “civil rights”/“cruel and unusual” constitutional violations.   

By the way, Justice Thomas’s dissent demonstrates how unfair—and vicious—liberals were when the Hudson case came down and they lambasted him for being indifferent to the physical abuse of a prisoner.

FP: You’ve often written in this magazine and elsewhere about Federalism.  Is there an important point about federalism lurking in Justice Thomas’s Hudson dissent?

Holzer: Absolutely, an extremely important point.  And one too often missed because of the “anti-prisoner” allegations unfairly leveled against Justice Thomas.  He could not be more clearly on the record. 

In his Hudson dissent he wrote unambiguously that “[t]oday’s expansion [by the Court’s majority] of the Cruel and Unusual Punishments Clause beyond all bounds of history and precedent is, I suspect, yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society.  Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt.  But that does not mean that it is invariably unconstitutional.  The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation. To reject the notion [as Thomas does] that the infliction of concededly “minor” injuries can be considered either “cruel” or “unusual” punishment (much less cruel and unusual punishment) is not to say that it amounts to acceptable conduct.  Rather, it is to recognize [as Thomas does] that primary responsibility for preventing and punishing such conduct rests not with the Federal Constitution but with the laws and regulations of the various States.” 

FP: The last paragraph of your book states that it’s because of . . . “Clarence Thomas’s uncompromising fealty to those founding documents [the Virginia Declaration of Rights, the Declaration of Independence, the Constitution, the Federalist, the Bill of Rights, and the post-Civil War amendments], to those who mid-wifed their birth, and to the political explosions to which they gave life, that he deserves to be recognized as ‘The Keeper of the Flame.’”  Obviously, you’ve drawn this conclusion from the hundreds of his opinions that you’ve examined in your book, exemplified by the few that we’ve discussed today.  Can you expound on this a bit?

Holzer: We come back to the liberals’ creation and use of their “Living Constitution” monster in cases like Griswold v. Connecticut (where Justice William O. Douglas invented the indefensible “right to privacy”), and Roe v. Wade (where Justice Blackmun indefensibly applied it to abortion)—cases that have been decided in a manner at the polar opposite of Originalism. 


Using the indefensible notion of a “Living Constitution” is not only an anti-democratic and intellectually dishonest way to interpret our Constitution (and federal statutes), use of that tool in constitutional adjudication is also demonstrably capable of manufacturing dangerous ersatz “rights” that carry tremendous moral and social costs.  As we have seen, too often in cases like Griswold and Roe.


It’s Griswold’s interpretive methodology—imposed by liberals on the basic Constitution, on the Bill of Rights, on the Fourteenth Amendment—and the invention and institutionalization of ersatz “rights,” that has made possible the decades-long metastasis of the “Living Constitution’s” malignant doctrines into most areas of modern constitutional law.

In the name of our Founding Fathers, during his fifteen terms as an associate justice of the Supreme Court Justice Clarence Thomas has consistently fought against this anti-constitutional disease.  More than any other member of the Court in modern times he has kept the constitutional faith.  That’s why I say, and others should recognize that he is truly the keeper of the flame.

FP: Henry Mark Holzer, thank you for joining us today.


Holzer: Thank you Jamie.


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Jamie Glazov is Frontpage Magazine's editor. He holds a Ph.D. in History with a specialty in Russian, U.S. and Canadian foreign policy. He is the author of Canadian Policy Toward Khrushchev’s Soviet Union and is the co-editor (with David Horowitz) of The Hate America Left. He edited and wrote the introduction to David Horowitz’s Left Illusions. His new book is United in Hate: The Left's Romance with Tyranny and Terror. To see his previous symposiums, interviews and articles Click Here. Email him at jglazov@rogers.com.

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