University of Central Missouri expert’s book analyses the Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas and the Limits of Constraint

A new book by a University of Central Missouri professor profiles three prominent United States Supreme Court “originalists” suggesting that in actual practice this approach to legal decision making does not deliver on its promise of being free of personal philosophy and discretion. While originalists have looked to the text and original meaning of the Constitution as a clear and objective approach for jurisprudence, the author notes that these three originalist justices would likely have come to different conclusions on a variety of legal matters if they all served on the same court together.

“Just as the framers of the Constitution had different perspectives on various constitutional issues such as separation of powers, judicial review, the scope of executive power, federalism and the importance of a bill of rights, so do these three originalists,” wrote the author, James B. Staab, Ph.D., J.D.

Staab’s 453-page book dives into the decisions, influences and philosophies of these three prominent originalists. Titled, Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas, the book was published by University Press of Kansas in Lawrence in August 2022.

Staab is an award-winning professor of political science who has taught at UCM since 1998, specializing in public law, including American constitutional law, judicial politics, and civil rights and liberties. A seasoned educator and a scholarly writer on many law-related matters, his latest book follows his 2006 publication, The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (Lanham, MD.: Rowman & Littlefield).

In his newest book, Staab continues to expand on a wealth of research about Scalia. Serving on the court from 1986 to 2016, this conservative justice popularized originalism within the legal community, and was known for his philosophical approach to law inspired by one of the U.S. founding fathers, Alexander Hamilton. After reading Staab’s first book, Scalia accepted the author’s invitation to speak at UCM in 2008, which was a rare opportunity considering the former justice seldom spoke at higher education institutions without law schools. It was also an opportunity for the audience to hear firsthand the longtime justice’s comments on originalism, which became his signature legal approach.

In the same manner that Staab’s book includes biographical information about Scalia and the influences that shaped his personal and professional life and contributed to his jurisprudence, the author also sheds light on the lives and careers of Hugo Black (1937-1971) and Clarence Thomas (1991 to present) and the influences that may have impacted their service on the bench.

A significant theme in Limits of Constraint challenges the belief espoused by defenders of originalism that this approach to constitutional interpretation constrains judicial discretion, as compared to a more “activist” jurisprudence among justices who promote a living Constitution – one that evolves based on changes in society without the necessity and challenges of formal amendments. Staab notes, however, that there are numerous examples in which Justices Black, Scalia and Thomas arrived at different conclusions when interpreting the same constitutional provision. Such examples help demonstrate that originalism does not completely constrain judicial behavior as its supporters have claimed.

“This, of course, does not mean that the search for original meaning is unimportant or illegitimate. The text of the Constitution and its historical meaning are the essential starting places for any honest interpretation of that document. But the defenders of originalism have made their case too strongly,” Staab wrote.

Staab stated that the three originalists have defended their legal decision-making approach as the best way to prevent judicial discretion, but like other human beings justices are not infallible, and are subject to external influences. One commonality these justices share is their belief that the tools of originalism, using text and history, would prevent them from making “policy decisions that are better left to the political branches of government.” This notion has been supported in the writings of these three justices during their tenure on the court.

Influenced by Thomas Jefferson, Black was the fifth longest-serving Supreme Court justice in U.S. history, and while neglected in the literature on originalism, he is the first full-throated originalist and a strong defender of the “high wall” theory of the establishment clause, according to Staab. During his judicial service, when the court was asked to resolve a number of social and economic issues (e.g., minimum wages, maximum hours, child labor) under the due process clause Black advocated for the power of states or Congress to resolve these matters. He noted that his preference is “to put my faith in the people and their elected representatives to choose the proper policies for our government to follow, leaving to the courts questions of constitutional interpretation and enforcement.”

Staab wrote that Scalia defended originalism because it establishes a historical criterion that is conceptually quite separate from the judge’s preferences. In his writings, the justice stated that the “main danger in judicial interpretation of the Constitution is that the judges will mistake their own predilections for the law.”

A libertarian who was greatly influenced by his maternal grandfather as a child, Thomas defended originalism in a 1996 speech as the best way to help ensure “impartiality” in legal decision making. He wrote, “The popular idea that Justices and judges somehow ‘make the law’ or represent the interests of certain constituencies (or help the Constitution ‘evolve’) is a dangerous idea that is at war with the very concept of impartial judging and the rule of law.”

In the fifth chapter of Limits of Constraint, Staab outlines both the similarities and differences of opinions shared by Justices Black, Scalia and Thomas, citing a number of different writings and court cases. One such example has to do with the scope of executive power, which in a famous debate with James Madison, Hamilton interpreted as giving the president broad discretionary authority to decide how to execute the laws. Justice Black, according to the author, flatly rejected Hamilton’s broad interpretation of Article II by noting, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Justices Scalia and Thomas, however, have endorsed Hamilton’s broad definition of executive power.

Another example of the justices’ differing opinions relates to church and state issues and the use of taxpayer money to support religious schools. Justice Black believed not “one penny” of taxpayer funding should be used for this purpose. Justices Scalia and Thomas, on the other hand, have supported federal aid to religion via school vouchers. The three justices also had dramatically different interpretations of the Second Amendment. Justice Black joined the unanimous decision in United States v. Miller (1939), which connected the right to keep and bear arms to state militias. In sharp contrast, Scalia and Thomas led the constitutional revolution to find that the Second Amendment protected an individual right to bear arms for self-defense.

Staab has incorporated into his book many other relevant examples that help support a better understanding of originalism in action and its limited impact on judicial constraint. From constitutional issues such as legal standing, separation of powers, freedom of speech (particularly related to national security), libel, obscenity, religious freedom, administrative searches, Miranda rights, the right to counsel, Brown v. Board of Education (1954) and the integration of public schools, property rights, racial gerrymandering, and reapportionment, he strives to help readers gain a much better understanding of the originalist jurisprudence of Justices Black, Scalia and Thomas.

Originalism, Dr. Staab claims, is a minority perspective in the U.S. today; however, four of the current members of the Roberts Court (Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) describe themselves as originalists. Justice Samuel Alito, the author of last year’s Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade (1973), calls himself a “practical originalist.” Staab believes it is important for readers to consider how this growing group of like-minded decision makers could possibly impact future jurisprudence.

Asked about his objective in writing the book, Staab stated that it represents “a challenge to originalism, both in terms of the basic idea that text and history limit discretion, because in many respects they do not.” Just as importantly, however, originalism is inconsistent with the common law tradition in the U.S. “I don’t think the framers of the Constitution wanted the Constitution to be interpreted based on their own views,” he said.

The language of the Constitution, Staab added, is written in what Justice Robert Jackson called “majestic generalities”: abridging the freedom of speech, due process of law, unreasonable searches and seizures, cruel and unusual punishments, equal protection of the laws. “To me, it’s very hard to say that when you write language like that it is supposed to be tied to that particular time, but yet, we have a court that is now dominated by that philosophy, which in some ways is counterintuitive. I don’t think that is what the authors of the Constitution would have wanted or was their basic purpose and design. Why would they want to restrict future generations of Americans to interpreting the Constitution based on their own views?” As Chief Justice John Marshall famously remarked, “It is a constitution we are expounding,” one that “is intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

In addition to teaching at UCM, Staab also continues to write about the Supreme Court and the judicial system. A letter he wrote was published in May 2023 in The New York Review of Books, and in June The Kansas City Star published a guest essay contributed by Staab about the impact of originalism on Roe v. Wade.