How Justice Thomas Determines the Original Meaning of Article II of the Constitution

Abstract

This paper was presented at a panel on Justice Thomas and Article II at the Yale Federalist Society’s conference, Celebrating Justice Thomas: 25 Years on the Supreme Court. It addresses the question: How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution? In answering this question, I make three observations based on opinions authored or joined by Justice Thomas. First, Justice Thomas seems much more inclined to theorize about executive power than other aspects of constitutional law. Second, Justice Thomas routinely cites seven key sources of original meaning in his decisions on executive power. Third, in deciding questions under Article II, Justice Thomas adheres to his general approach of seeking the original objective meaning of the Constitution, rather than some other form of original meaning. The practical conclusions from my observations are twofold. First, a litigator who hopes to persuade Justice Thomas in an Article II case should attempt to find support in a variety of historical sources. Second, the same litigator also should consider making arguments based on theories of executive power--such as those concerning the competence and authority of the President compared to Congress and the Courts--even though Justice Thomas generally decides other kinds of constitutional questions with a focus more on the text of the Constitution than on abstract principles.