Justice Thomas on the Value of the Founding

May 18th, 2015

In his dissent in Comptroller of Treasury of Md. v. Wynne, Justice Thomas offers this concise string cite for the importance of founding-era traditions for originalism:

In other areas of constitutional analysis, we would have considered these laws to be powerful evidence of the origi- nal understanding of the Constitution. We have, for example, relied on the practices of the First Congress to guide our interpretation of provisions defining congres- sional power. See, e.g., Golan v. Holder, 565 U. S. ___, ___ (2012) (slip op., at 16) (Copyright Clause); McCulloch v. Maryland, 4 Wheat. 316, 401–402 (1819) (Necessary and Proper Clause). We have likewise treated “actions taken by the First Congress a[s] presumptively consistent with the Bill of Rights,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (ALITO, J., concurring) (slip op., at 12). See, e.g., id., at ___ – ___ (majority opinion) (slip op., at 7– 8); Carroll v. United States, 267 U. S. 132, 150–152 (1925). And we have looked to founding-era state laws to guide our understanding of the Constitution’s meaning. See, e.g., District of Columbia v. Heller, 554 U. S. 570, 600–602 (2008) (Second Amendment); Atwater v. Lago Vista, 532 U. S. 318, 337–340 (2001) (Fourth Amendment); Roth v. United States, 354 U.S. 476, 482–483 (1957) (First Amendment); Kilbourn v. Thompson, 103 U. S. 168, 202– 203 (1881) (Speech and Debate Clause); see also Calder v. Bull, 3 Dall. 386, 396–397 (1798) (opinion of Paterson, J.) (Ex Post Facto Clause).  … As was well said in another area of constitu- tional law: “[I]f there is any inconsistency between [our] tests and the historic practice . . . , the inconsistency calls into question the validity of the test, not the historic prac- tice.” Town of Greece, supra, at ___ (ALITO, J., concurring) (slip op., at 12).

I think that last citation was a gratuitous jab at Justice Alito, who authored the majority opinion in Wynne.