Clarence Thomas’s drunk uncle email forward history

An actual historian of congressional power and indigenous rights weighs on Clarence Thomas’s recent “originalist” claims that any federal power not specifically exercises by the First Congress is forfeited forever:

My involvement in the case stems from my work as a historian of the legal relationship between the United States and Native nations—what was known as “Indian affairs.” Back in 2015, while still a student, I wrote an article on the constitutional history of federal authority in this area. In it, I critiqued Justice Thomas’ musings in his 2013 concurrence in Adoptive Couple v. Baby Girl that ICWA exceeded the original understanding of congressional power. I wrote that article for a simple reason: After several years digging into the archival materials for another project, I knew that Thomas’ opinion rested on a law review article by Robert Natelson that had glaring, objective errors in evidence. It seemed important to me to try to set the historical record straight as best I could.

Years later, Brackeen ended up turning partly on this historical question. As Slate has traced, the lead-up to the case featured the bizarre experience of having Natelson respond to my scholarly critique of his article by labeling me “shyster-like” and launching an all-out (and, at least to my mind, surprisingly easily disproven) assault against me. And in Brackeen, Justice Neil Gorsuch’s lengthy concurrence and Thomas’ equally lengthy dissent recapitulated this kerfuffle (without the ad hominem attacks, fortunately). In a sense, their debate was an originalist battle over the proper interpretation of the historical evidence.

I can’t claim to be an impartial observer here, since Gorsuch relied on my work and amicus brief—as well as the work of other important scholars like Matthew Fletcher, Wenona Singel, Michalyn Steele, Robert Clinton, Christopher Green, and a historians’ amicus brief authored largely by Maggie Blackhawk—to rebut Thomas. But this battle left me with two broader thoughts—one about Thomas’ dissent, one on Gorsuch’s concurrence.

First, on Thomas: I don’t need to add the latest critique on how originalism is often results-oriented, but I do think his dissent offers an interesting reflection on how it functions in practice. Originalism rests on the premise that, properly interpreted, history can sometimes offer objective and correct answers to legal questions. And, although I am at best agnostic on originalism as a constitutional theory, my article, and my work more generally, attempted to take that premise seriously. I have spent years immersed in the relevant sources, and written extensively on the historical question at issue; I have professional historical training; and I spoke directly to the kinds of legal questions that lawyers often complain that historians don’t care about.

None of this means that I’m necessarily right. What it does mean is that I have done the work. Even for originalist inquiries—like, say, the meaning of “commerce”—history is not the same as law; there is not some carefully cabined, narrow set of relevant sources. Mastering historical materials requires years of labor. And so it is not exactly comforting to see that, over the past few months, Justice Thomas seemingly dispatched his law clerks to do some full-text searches and then cut and pasted the results. (Perhaps most galling were Thomas’ multiple citations to sources that I am 99 percent certain were surfaced through my research.) The resulting dissent mostly just doubled down on the conclusions Thomas had reached ten years ago, including citing Natelson, while almost willfully pretending that the very substantial contrary evidence referenced by Gorsuch simply did not exist. If we’re going to be originalists, you’d hope that decisions dramatically altering current law would rest on a sturdier footing.

Second, on Gorsuch: His opinion seeks to recover what I, and others before me, have suggested might have been something closer to the original constitutional understanding of “Indian affairs”: that the federal government enjoyed exclusive authority over relations with Native nations (precluding state power) but held limited authority over Native peoples themselves. Unfortunately, the Supreme Court abandoned that conceptual frame in the late nineteenth century. It will be interesting to see whether it can be plausibly restored without succumbing to Thomas’ vision, which would eliminate critical federal protections for Native sovereignty.

There are still some issues where Gorsuch’s general reactionary instincts can be overcome by a powerful legal argument (and this issue area is the most prominent.) This used to be the case for Thomas as well, but since the election of Trump he’s pretty much gone the full Alito.